Petition — Washington v. Louisiana

Supreme Court brief1976

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JAN 28 1976

edie MICHAEL RODAK, JR., CLERK

SUPREME COURT OF THE UNITED STATES

-—-++--

October Term, 1975

| no. IH-6123

JOHNSON WASHINGTON, JR.,

Petitioner,

-V.7

STATE OF LOUISIANA,

Respondent

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF LOUISIANA

JACQUES F. BEZOU

1304 First National Bank of

Commerce Building

New Orleans, Louisiana 70112

JACK GREENBERG

JAMES M. NABRIT, IIl

DAVID E. KENDALL

PEGGY C. DAVIS

10 Columbus Circle

New York, New York 10019

ANTHONY G. AMSTERDAM

Stanford University Law School

t Stanford, California 94305

ATTORNEYS FOR PETITIONER

' Statement

LE OF CONTENTS

Batetsen Ge Gebesas BERG oocc cecccsscesesescesecee

Jurisdiction “ener evneneeneeeeeeneeneneeaeeeeeenenwneneneneenwe errr er!

Questions Presented *eneevneneeneeeneneeneaneenewnenewneewneanenenenwnannwnennee

Constitutional and Statutory Provisions Involved..

How the Federal Questions Were Raised and Decided

Below ld ee oe |

Reasons for Granting the Writ .ccccccccccceccccecce

The Court Should Grant Certiorari To

Consider Whether The Imposition And

Carrying Out Of The Sentence of Death

For The Crime Of First Degree Murder

Under The Law Of Louisiana Violates

The Eighth Or Fourteenth Amendment To

The Constitution Of The United States....

The Court Should Grant Certiorari To

Consider Whether The Exclusion For Cause

Of Fourteen Veniremen On The Grounds Of

Their Expressed Attitudes Toward The

Death Penalty Violated Petitioner's

Rights Under The Sixth Or Fourteenth

Amendment To The Constitution Of The

CRSOGE BORGES 06 ccbeesecnccceoceseéceseses

The Test of Exclusion Applied by

the Court Below Did Not Meet the

Minimum Standards Required by the

Constitution As Construed in

Witherspoon v. Illinois, 391 U.S.

510 (1968) ere ee ee eee eee eee eee ee

The Exclusion of Veniremen with

Conscientious Scruples Against

Capital Punishment Deprived

Petitioner of His Sixth Amendment

Right to a Representative Jury ......

Page

22

25

25

28

28

35

Iit.

The Court Should Grant Certiorari To

Consider Whether Introduction At

Petitioner's Capital Trial Of His

Written Confession And Of A Pistol

Which Petitioner Retrieved For The

Police Violated His Fifth Amendment

Right Against Compulsory Self Incrim-

ination When This Statement And

Physical Evidence Were Obtained As

A Direct Consequence Of An Earlier

Coerced Oral Confession Which Was

ae DE ob cd cctdeuecaccoesesseceees

Conclusion erreereeeveeeeeeeeeeaeeseeeeeeeeeeeeeeeeeee

Appendix

A: State v. Washington, La. _, 321 So.

2d 763 [Mitte Peee een aneeéeenene Gb ame

Appendix

for

No.

Appendix

B: Pp. 17-30 and pp. 42-43, Petition

Writ of Certiorari, Selman v. Louisiana,

74-6065 (filed February 24, 1975)........

C: Selected pages of jury selection

transcript showing exclusion for cause of

fourteen veniremen at petitioner's trial

on account of conscientious scruples

against capital punishment ............cccccee

Appendix

_ *

Appendix

D: Commonwealth v. O'Neal, _Mass._,

E.2d __, Mass. Adv. Sh. (1975)......c.e0-

E: Pp. 72-78, Petition for Writ of

Certiorari, Hallman v. Florida, No. 74-6168

(filed March 1l,

ii

a a ere

Page

36

47

la

lb

le

1d

le

Page

Beecher v. Alabama, 389 U.S. 35 (1967) ...ccccccccccecce 44

Beecher v. Alabama, 408 U.S. 234 (1972) .........cee0e. 44

Blackburn v. Alabama, 361 U.S. 199 (1960).............. 46

Boulden v. Holman, 394 U.S. 478 (1969).......ccccceceee 31

Brown v. Illinois, _U.S.__, 45 L.Ed.2d 416 (1975)..... 44

Clewis v. Texas, 306 U.8. FO7 (1967) wccccccccccccececes 44

Commonwealth 'v. O'Neal, _ Mass._, _ N.E.2d _, Mass.

Adv. Sh. (1975) 3502 ree ee eee ewe ewnewneewr ewer wr rere 27

Darwin v. Connecticut, 391 U.S. 346 (1968)............- 44

Purman v. Georgia, 408 U.S. 238 (1972). ..cccccccccccces 25

Gregg v. Georgia, No. 74-6257 (cert. granted Jan. 22,

| ee Nn en ee ee 26

Hallman v. Florida, No. 74-6168 (filed March ll, 1975). 35

Harrison v. United States, 392 U.S. 219 (1968)......... 43,44

Jameen V. Beaune, BFS U.8. BS (19G6) ccccccceccccorvecss 46

Jurek v. Texas, No. 75-5394 (cert. granted Jan. 22,

De 006 068060640h6606 600006486 684886 O Sees 26

Kastigar v. United States, 406 U.S. 441 (1972)......... 46

Manness v. Meyers, __U.S.__, 42 L.Ed.2d 574 (1975)..... 46

Michigan v. Tucker, 417 U.S. 433 (1974).......ccccccces 45

Miranda v. Arizona, 384 U.S. 436 (1966) ............--. 18,36,

39,41,44

People v. Anderson, 6 Cal.3d 628, 493 P.2d 880,

100 Cal. Rptr. 152 [66606060 666000660806 27

Proffitt v. Florida, No. 75-5706 (cert. granted

Jan. 22, Be 66:50 606600604056656606586660 0008 26

Roberts v. Louisiana, No. 75-5844 (cert. granted

Jan. 22, De 660004600060 0000060060066060 66008 25,26

Robinson v. Tennessee, 392 U.S. 666 (1968)...........6- 44

iii

Selman v. Louisiana, No. 74-6065 (filed Feb.

me Pere Cee TTT TTT TTT TTT Tri TTTrTT Tree err

Spano v. New York, 360 U.S. 315 (1959) .....cccccccccces

Stein v. New York, 346 U.S. 156 (1953)....cccccccccccce

United States v. Bayer, 331 U.S. 532 (1947).........ee-

Witherspoon v. Illinois, 391 U.S. 510 (1968)...........

Woodson v. North Carolina, No. 75-5491 (cert.

granted Jan. 22, 1976)....... TrYTTTITTTTrrrrte

Statutes:

La. Rev. Stat. Ann. §14:29 (1574) .....cccccccccccccces

BASSO (ISPS) cccccoceccces eocccccse

§14:30.1 (1974)..... ecvccvecccsocse

$14231 (1974) ..ccccccce eoccccccoces

§14:42 (1974)...... : eecccccces cccce

GASsSE7 (LSS7) .ccccccecccces eecccee °

G135sS66 (1975S supp.) cccccccccceccs ee

SSSeTSS (ISST) co ccccvcceqeseccesece °

§15:570 (1974 supp.). ...... eccccecs

La. Code Crim. Proc. Ann. art. 598 (1975 supp.)....... °

SEC. GOS (I9G7F) ccccccccceses

art. 804 (1967) ....cccccccececs

art. 809 (1967)...........26-

art. 814 (1975 supp.) .......

art. 814(A)(1)(1975 supp.)...

art. 817 (1975 supp.)........

Mass. Declaration of Rights

Articles 1, 10, 12, 26........ eoccccces ecccece

Mass. Gen. L. C.265, §2 ...see. TYTTTTiTT PTTTTTTTTL TTT TT

iv

Page

3,22

8,26

27

27

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1975

No. 75-

! JOHNSON WASHINGTON, JR.,

Petitioner,

-V.-

STATE OF LOUISIANA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF LOUISIANA

Petitioner prays that a writ of certiorari issue to review

the judgment of the Supreme Court of the State of Louisiana

entered on October l, 1975.

CITATION TO OPINION BELOW

The opinion of the Supreme Court of Louisiana is reported

at _ La.__, 321 So.2d 763 (1975), and is set out in Appendix

A hereto, pp. la-6a, infra.

JURISDICTION '

The judgment of the Supreme Court of the State of Louisiana

was entered on October 1, 1975, and is set out in Appendix A

hereto. On December 18, 1975, Mr. Justice Powell entered an

order extending the time in which to file apetition for a writ

| of certiorari in this case to and including January 29, 1976.

'

'

4

'

Jurisdiction of this Court is invoked under 28 U.S.C. §1257(3),.

petitioner having asser*ed below and asserting here deprivation

of rights secured by the Constitution of the United States.

QUESTIONS PRESENTED

1. Whether the imposition and carrying out of the sentence

of death for the crime of first degree murder under the law of

Louisiana violates the Eighth or Fourteenth Amendment to the

Constitution of the United States?

2. Whether the exclusion for cause of fourteen veniremen

on the grounds of their expressed attitudes toward the death

penalty violated petitioner's rights under the Sixth or Four-

teenth Amendment to the Constitution of the United States?

3. Whether the introduction at petitioner's capital

trial of his written confession and of a pistol which petitioner

retrieved for the police violated his Fifth Amendment right

against compulsory self incrimination when this statement

and physical evidence were obtained as a direct consequence

of an earlier coerced oral confession which was not introduced?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. This case involves the Fifth, Sixth, Eighth

and Fourteenth Amendments to the Constitution of the United

States.

This case also irvolves the following provisions of the

Revised Statutes Annotated and Code of Criminal Procedure of

Louisiana.

eee

—

La. Rev. Stat. Ann. §14:29 (1974):

“Homicide; general provisions. Homicide is the

killing of a human being by the act, procurement

or culpable omission of another. Criminal homicide

is of four grades:

(1) First degree murder

(2) Second degree murder

(3) Manslaughter

(4) Negligent homicide.

No liability for criminal homicide shall attach

unless the injured party dies within a year after

the injury is inflicted."

La. Rev. Stat. Ann. §14:30 (1974):

“First degree murder. First degree murder is

the killing of a human being:

(1) When the offender has a specific intent

to kill or to inflict great bodily harm and is engaged

in the perpetration or attempted perpetration of

aggravated kidnapping, aggravated rape or armed

robbery; or

(2) When the offender has a specific intent

to kill, or to inflict great bodily harm upon, a

fireman or a peace officer who was engaged in the

performance of his lawful duties; or —

(3) Where the offender has a specific intent

to kill or to inflict great bodily harm and has

previously been convicted of an unrelated murder

or is serving a life sentence; or

(4) When the offender has a specific intent

to kill or to inflict great bodily harm upon more

than one person;

(5) When the offender has specific intent to

commit murder and has been offered or has received

anything of value for committing the murder.

For the purposes of paragraph (2) herein, the term

peace officer shall be defined and include any

constable, sheriff, deputy sheriff, local or state

policeman, game warden, federal law enforcement

officer, jail or prison guard, parole officer,

probation officer, judge, district attorney,

assistant district attorney or district attorneys’

investigator.

° ——.

——

Whoever commits the crime of first degree

murder shall be punished by death.” 1/

La. Rev. Stat. Ann. §14:30.1 (1974):

"Second degree murder. Second degree murder

is the killing of a human being:

(1)When the offender has a specific

intent to kill or to inflict great bodily

| harm; or

(2)When the offender is engaged in the

perpetration or attempted perpetration of

aggravated arson, aggravated burglary, aggravated

kidnapping, aggravated escape, armed robbery, or

| simple robbery, even though he has ro intent to

kill.

Whoever commits the crime of second degree

murder shall be imprisoned at hard labor for life

and shall not be eligible for parole, probation

or suspension of sentence for a period of twenty

i 2 f On July 17, 1975, the Louisiana legislature enacted Act. 327

(H.B. No. 320) which provides:

“Section 1. Section 30 of Title 14 of the Louisiana

Revised Statutes of 1950 is hereby amended and re-

enacted to read as follows:

§ 30. First degree murder

First degree murder is the killing of a human

being:

(1) When the offender has a specific

intent to kill or to inflict great bodily harm

and he is engaged in the perpetration or attempted

perpetration of aggravated kidnapping, aggravated

rape, aggravated burglary, or armed robbery; or

o . *

For the purposes of Paragraph (2) hereof, the

term peace officer shall be defined and include

any constable, sheriff, deputy sheriff, local or

state policeman, game warden, federal law enforce-

ment officer, jail or prison guard, parole officer,

i probation officer, judge, district attorney, assistant

district attorney, or district attorneys' investigator.

Whoever commits the crime of first degree murder

1 shall be punished by death.

i Section 2. All laws or parts of laws in conflict

herewith are hereby repealed.” |

, Louisiana Session Laws 1975 (West's Louisiana Session Law Service

Hl 1975 at 570-571).

; i

|

|

————————

years." 2/

La. Rev. Stat. Ann. §14:31 (1974):

“Manslaughter. Manslaughter is:

(1) A homicide which would be murder under

either Article 30 (first degree murder) or

Article 30.1 (second degree murder), but the |

offense is committed in sudden passion or heat

of blood immediately caused by provocation

sufficient to deprive an average person of his

self control and cool reflection. Provocation

shall noc reduce a homicide to manslaughter if

the jury finds that the offender's blood had

actually cooled, or that an average person's

blood's would have cooled, at the time the

offense was committed; or

(2) A homicide committed, without any intent

to cause death or great bodily harm.

(a) When the offender is engaged in the

perpetration or attempted perpetration of any

felony not enumerated in Articles 30 or 30.1, or

of any intentional misdemeanor directly affecting

the person; or

(b) When the offender is resisting lawful

2/ Om July 17, 1975, the Louisiana Legislature enacted Act

380 (H.B. No. 311) which provides:

"Section 1. Section 30.1 of Title 14 of the

Louisiana Revised Statutes of 1950 is hereby

amended and reenacted to read as follows:

§ 30.1 Second degree murder

Second degree murder is the killing of a human

being:

(1) When the offender has a specific intent

to kill or to inflict great bodily harm; or

(2) When the offender is engaged in the

perpetration or attempted perpetration of .

aggravated arson, aggravated burglary, aggravated

kidnapping, aggravated escape, armed robbery, or

simple robbery, even though he has no intent to

kill.

Whoever commits the crime of second degree murder

shall be imprisoned at hard labor for life and shall

not be eligible for parole, probation, or suspension

of sentence for a period of forty years.

Section 2. All laws or parts of laws in conflict

herewith are hereby repealed.”

Louisiana Session Laws 1975 (West's Louisiana Session Law Service

1975 at 665).

arrest by means, or in a manner, not

inherently dangerous, and the circumstances

are such that the kiliing would not be nurder

under Articles 30 or 30.1

Whoever commits manslaughter shall be imprisoned

at hard labor for not more than twenty-one years."

i

La. Rev. Stat. Ann. §15:567 (1967):

!

"Conditions precedent to execution; warrant of

governor. No person sentenced to death shall be

executed until a certified copy of the indictment,

verdict and sentence shall have been sent to the

governor, and a warrant shall have been issued by

him, under the seal of the state, directed to the

warden of the Louisiana State Penitentiary at

Angola, commanding the warden to cause the execution

to be done on the person so condemned in all things

according to the judgment against him, and upon the

date named in said warrant."

La. Rev. Stat. Ann. §15:568 (1975 supp.):

“Execution of death sentence; prior confinement

of offender. The director of the Department of

Corrections, or a competent person selected by

him, shall execute the offender in conformity

with the deatii warrant issued in the case. Until

the time of his execution, the Department of

Corrections shall incarcerate the offender in a

manner affording maximum protection to the general

public, the employees of the department, and the

security of the institution."

La Rev. Stat. Ann. §15:569 (1967):

“Place for execution of death sentence; manner

of execution. Every sentence of death imposed in

this state shall be by electrocution; that is,

causing to pass through the body of the person

convicted a current of electricity of sufficient

intensity to cause death, and the application and

continuation of such current through the body of

the person convicted until such person is dead.

Every sentence of death imposed in this state shall

be executed at the Louisiana State Penitentiary at

Angola. Every execution shall be made in a room

entirely cut off from view of all except those

permitted by law to be in said room.”

La. Rev. Stat. Ann. §15:570 (1974 supp.):

“Officials and witnesses present at execution;

minors excluded. Every execution of the death

sentence shall take place in the presence of the

warden of the Louisiana State Penitentiary at

Angola, or a competent person elected by him, the

oe @«

coroner of the parish of West Feliciana, or his

deputy, and a physician summoned by the warden

of the Louisiana State Penitentiary at Angola,

the operator of the electric chair who shall be

a competent electrician who shall have not been

previously convicted of a felony, a priest or

minister of the gospel, if the convict so requests

it, and not less than five nor more than seven

other witnesses, all citizens of the State of

Louisiana; no person under the age of eighteen

years shall be allowed within said execution room

during the time of execution."

La. Code Crim. Proc. Ann. art. 598 (1975 supp.):

"Effect of verdict of lesser offense. When a person

is found guilty of a lesser degree of the offense

charged, the verdict or judgment of the court is

an acquittal of all greater offenses charged in the

indictment and the defendant cannot thereafter be

tried for those offenses on a new trial.”

La. Code Crim. Proc. Ann. art. 803 (1967):

"Same [General charge; scope]; charge as to

included minor offenses and plea of insanity.

When a count in an indictment sets out an

offense which includes other offenses of which

the accused could be found guilty under the pro-

visions of Article 814 or 815, the court shall

charge the jury as to the law applicable to each

offense ...."

La. Code Crim. Proc. Ann. art. 804 (1967):

La.

“Same; charge as to presumption of innocence,

reasonable doubt, and several grades of offense ....

(B) When there are several grades of an offense

contained in a single count, the court shall charge

the jury as to each grade of which the defendant

could be found guilty."

Code Crim. Proc. Ann. art. 809 (1967):

“Judge to give jury written list of responsive

verdicts. After charging the jury, the judge shall

give the jury a written list of the verdicts responsive

to each offense charged, with each separately stated.

The list shall be taken into the jury room for use

by the jury during its deliberation."

La. Code Crim. Proc. Ann. art. 814 (1975 supp.):

"Responsive verdicts; in particular. A. The

on” ’ responsive verdicts which may be rendered

where the indictment charges the following

offenses are:

1. First Degree Murder:

Guilty.

Guilty of second degree murder.

Guilty of manslaughter.

Not guilty ... ,."

La. Code Crim. Proc. Ann. art. 817 (1975 supp.):

"Qualifying verdicts. Any qualification of or

addition to a verdict of guilty, beyond a speci-

fication of the offense as to which the verdict

is found, is without effect upon the finding."

STATEMENT

This is a petition for a writ of certiorari to review

the judgment of the Supreme Court of Louisiana, entered on

October 1, 1975, affirming petitioner's conviction and death

sentence. Petitioner, Johnson Washington, Jr., a twenty-year-old

black man, was convicted of the first degree murder of a white

St. Charles Parish deputy sheriff, James A. Arterbury, and was

sentenced to death on February 4, 1974, in the Twenty Ninth

Judicial District Court, Parish of St. Charles, Louisiana.

During the late afternoon and early evening of July 4, 1973

3/

a "record hop," T. 13, was being held at the Nitecap Lounge in

Killona, Louisiana for the benefit of the Killona Snipers Softball

3/ The transcript in this case is divided into a number of

separately paginated sections. Hereinafter, reference to the

535 page trial transcript will be prefaced by "T." References

to other sections of the transcript will be as follows: sanity

hearing -- San. T.; change of venue hearing -- C.V.T.; motion to

Suppress hearing -- M.S.T.; jury selection -- J.s.7.; sentencing

hearing -- Sent. T.

|

Club, T. 68. ‘he admission price of fifty cents was being

collected at the door by one Clarence Campbell. Ibid. About 8:00

p-m., petitioner and three of his relatives (his cousins,

Rudolph Johnson and James Johnson, and his uncle, James

Washington), arrived at the Lounge and, according to Campbell,

attempted to enter without i 69. After a brief argu-

ment, Rudolph Johnson knocked the money box out of Campbell's

hand, and petitioner charged Campbell with a coke bottle. In

the ensuing melee (which caused considerable damage to the

inside of the Lounge, T. 19),Campbell knocked both of his

assailants down and physically threw them out of the Lounge.

T. 70. The owner of the Lounge, Mrs. Lucille Roberts, testified

that petitioner and Rudolph Johnson drew knives and began

“switching” them at her and at Campbel!, T. 14, 71, and

threatened to "cut" then, T. 71. A loud argument then took place

and Rudolph Johnson declared finally that he was going home:

""But when I come back . .. I'm going to tear this mother-

fucker down . .. I'm going to burn it up.'" T. 14-15. Petitioner

4/ Campbell testified that Rudolph Johnson paid him a dollar

(it is unclear from the record whether Rudolph Johnson entered

the Lounge at this point) and that petitioner then tried to enter

the Lounge. Campbell stopped petitioner, and then petitioner

and Rudolph Johnson conferred outside the Lounge. Rudolph

Johnson then walked back to Campbell and demanded $4.50 in

change and accused Campbell of cheating him. T. 69-70. The

fight started at this point.

was present at this point, but he uttered no threats. T. 15.

Mrs. Roberts and Campbell went back inside the Lounge,

and Mrs. Roberts telephoned the police “and told them to send

help right away." T. 16. A short time later, Deputy Arterbury

drove up in a marked St. Charles Parish sheriff's car. He was

dressed in his uniform, was wearing a pistol, and was carrying

either a pencil and pad, T. 18, or a flashlight, T. 82-A, in

his hands when he entered the Lounge. Mrs. Roberts told him

""All I know it [the dispute] is over some change.'" T. 18.

Campbell said he wanted "'these mens'" arrested because they

"tried to cut... (his) leg off,'" but Deputy Arterbury

told him he would have to file a complaint with the Justice

of the Peace, since he had only come to the Lounge to see "'if

they doing anything wrong and don't want to abide by the law.'"

T. 18-19. In that case, he added, "'I'll have to taken them to

jail.'" T. 19.

By this time, a large and unruly crowd had gathered out-

side, which was “hollering and yelling and making a lot of

noise." Ibid. Mrs. Roberts heard someone yell, “'Kill-kill that

son-of-a-bitch [Deputy Arterbury] . .. I say kill him,'" and

""'They ought to set that mother-fucker's [Mrs. Roberts' Lounge]

on fire . . . and burn that mother-fucker down .. . Cause

she ain't got no goddam business to call that policeman. '”

T. 20. Deputy Arterbury walked back out to his patrol car and

took his shotgun from the trunk, pumping a shell into the

» We

chamber, T. 124. He radioed headquarters that “he might need

assistance," T. 147, and urged the deputy who responded to

the call to "‘Hurry it up,'" T. 148.

Deputy Arterbury then turned to face the crowd, his

shotgun pointed up into the air. He asked where “Pop Johnson"

(petitioner's nickname) was, and petitioner's father, Johnson

Washington, Sr., demanded from the crowd, "'What do you want

with Pop Johnson?'"” T. 89. The deputy repeated his question,

and petitioner's father repeated his response. Ibid. At this

point, Mrs. Roberts' daughter ran into the Lounge and told

her mother that it "'looks like they are going to try to

kill the policeman.'" T. 20. Mrs. Roberts phoned the sheriff's

office to "'Come as fast as you can .. . The officer is up

here in trouble,'” and then she went outside with a “pool

stick" in her hand. Ibid. She heard Deputy Arterbury tell

the crowd, "'I didn't come here for no trouble,'" ibid.,

and another witness heard him declare that “he know everybody

been drinking, that it was the 4th of July, know they'd been

drinking and doing all that stuff, just came over there to

try to cool everything down.” T. 126.

Mrs. Roberts told the deputy to come into her yard for

safety, but as he crossed a shallow ditch, the crowd ("a whole

lot of men, women, everybody screaming," T. 127) ‘surged around

him, and petitioner's father grabbed the shotgun and attempted

to wrest it from his grasp. The people nearest the deputy

(a group which included petitioner, Rudolph Johnson, and James

Washington) also grabbed the shotgun, and it went off while

oe &2 «

‘ ;

* H

pointed in the air. T. 22. Then, according to petitioner's

twelve-year-old cousin, Albert Washington, petitioner pulled

Arterbury's .357 magnum pistol from its holster and shot

3/ |

the deputy once in the back with it.

The crowd scattered. Another cousin of petitioner's

Ronald addi” ciate that he was in the crowd around

the deputy when the shooting occurred (he heard only one

shot, however, T. 128). T. 124-120. As he “took off and started

running,” T. 130, however, petitioner handed him a pistol:

"(thle just told me to take it, take it and put it somewhere."

T. 131. Ronald Johnson hid the pistol in some grass near

Clarence Campbell's house, which was a short distance away

from the scene of the shooting. Ibid. Later that evening,

Ronald Johnson heard his brother James Johnson ask petitioner

“what had happened, who he had shot," ibid., and petitioner

“said that he had did it . .. . Shot that deputy.” T. 132.

Petitioner then had Ronald Johnson go back and retrieve the

pistol and said they must “try to find a place and hide it,

throw it away somewhere.” T. 133. As the three drove around

5/ Albert Washington was the only person who testified that

he actually saw petitioner shoot Deputy Arterbury. Although

it was “dark out there," “they had a light out there," and he

was able to see petitioner behind Deputy Arterbury, in the

midst of a crowd of about twenty people. T. 108. Albert

Washington also testified that he heard a total of four shots

T. 111, in all. All the rest of the State's evidence tended

to establish, however, that only two shots (one from the shot-

gun, one from the pistol) had been fired. T. 335, 355.

6/ Ronald Johnson was originally charged with the murder of

Deputy Arterbury, T. 135, but he was “booked but never billed

{i.e. indicted)", T. 118, since he was granted immunity, ibid.

o 29 «

looking for Rudolph Johnson (Ronald's and James‘ brother),

petitioner threw the pistol into the Waterford Canal from a

wooden bridge near the Killona power plant. T. 134.

When the deputy who had been sent to Arterbury's aid

arrived on the scene about 8:40 p.m. and found Arterbury

i radioed headquarters to “get the whole force out",

T. 148, and a massive night-long manhunt followed in which

a number of suspects in the Arterbury shooting were arrested

and taken to the sheriff's office for questioning. One

detective recalled that "[j]Just about everybody was out that

night." T. 294.

Detective V.J. St. Pierre arrived at the Nitecap Lounge

about 9:00 p.m. He took several eye witnesses to the police

station, and as a result of interrogations there, he proceeded

at about 11:55 p.m. to petitioner's father's house (where

petitioner also lived) with several other officers to arrest

petitioner and his father. Detective St. Pierre saw petitioner

sitting in a cayzand as deputies approached the car with their

pistols drawn,St.Pienp told petitioner he was under arrest for

murder. M.S.T. 86. Petitioner offered "resistance," ibid.,

and had to be pulled out of the car, whereupon he was hand-

cuffed and had his “Miranda warnings," ibid., read to him by

St. Pierre. The detective asked him, “'Do you understand

these rights?'" and petitioner replied, “"Sure.'”" T. 232.

7/ An ambulance arrived for Deputy Arterbury about 30 to 45

minutes later. T. 159. On the way to the hospital, it had an

accident, and slid into the ditch, pitching to the floor the

stretcher on which the still-conscious deputy was lying. T.164.

He died in the hospital emergency room later that evening. An

autopsy revealed several bruises and superficial cuts due to

the ambulance accident, but in the pathologist's opinion,

Depu Arterbu died from blood loss due to the gun shot

Sind’ in hi back. T SFR 8° Because of powder posits

around the vOvRG «te East e OdE St ya ote Ren He anahes °

am She Be mster tan hal

-— —

ee e——EE—EEE

The record is somewhat unclear concerning events of the

next eight hours. Petitioner and his father were taken to the

sheriff's office, and Rudolph Johnson, James Johnson, and

James Washington were also arrested sometime during the

period. M.S.T. 4, 69. There was contradictory testimony as

8/

to whether petitioner was physically abused. According to

8/ Deputy Coleman, M.S.T. 11, 16, Deputy Laque (who was in

charge of the St. Charles Parish jail), M.S.T. 27, 28,

Detective St. Pierre, M.S.T. 75, T. 300, Deputy Kimble, M.S.T.

99, and Deputy Walker, T. 241, all testified that they saw no

one strike or physically mistreat petitioner. Deputy Zeringue

photographed petitioner as part of the booking process shortly

after his arrest, M.S.T. 22-23; petitioner appeared “normal,”

M.S.T. 25, to him and he did not notice any marks or bruises

on petitioner, M.S.T. 23. Dr. Wilson Couch examined petitioner

on August 17,1973, six weeks after the arrest, M.S.T. 43,because

petitioner had complained of the “recurrence of headaches and

difficulty sleeping." M.S.T. 42. According to Dr. Couch, peti-

tioner did not “show signs of abuse at the time." M.S.T. 43.

According to petitioner, however, at the time of his arrest,

while his hands were handcuffed behind him, he was hit from

behind by a police night stick,M.S.T. 38, and:

"Down here in the courthouse office and they

started hitting on me and beating me, hitting

me in my private [sic] and everything, kicking

me. Hitting me side the head with a flashlight.

Hitting me in my back with a stick ....

{TJhey kept me up all night beating on me and

beating on me and then two of them came and took

me to my cell and they handcuffed me and kicked

me in my stomach and cut my wind and I fell down

side the floor and they kicked me side my temple."

M.S.T. 39-40. Petitioner's father, Johnson Washington, Sr.,

testified that the police kept “whipping us [the suspects

being interrogated] and shoving us around,” M.S.T. 70,

throughout the night following the arrests and that he

saw some deputies “hit his [petitioner's] head up side the

wall,” M.S.T. 71. Other defense witnesses gave similar

testimony. Bernie Johnson, the 16 year old brother of

James Johnson, testified that he was beaten by deputies

when he was arrested for interrogation on the night of

July 4, 1973. T. 373. Mrs. Pricilla Stipes, petitioner's

aunt, testified that she saw the police beat Johnson Washington,

Sr., when they urrested him, T. 394, and that when she went

to the police station, she saw the deputies beating petitioner,

T. 395. She said that she protested to Deputy Coleman who

teld the other deputies to “'Lay off them,'" T. 395-396.

Roland Smith, Jr., testified that the deputies "(p)assed

a a

the jailer, petitioner spent part of the night alone in

his cell, M.S.T. 27. It is clear, however, that petitioner

was interrogated at various times throughout the night.

Deputy Howard Walker recalled seeing petitioner in the book-

ing room with a number of deputies ("They had a lot of

deputies in the courthouse ... . Almost all the deputies

on the police force was out that night,") T. 247. Deputy

Nelson Coleman, the only black deputy sheriff in the St.

Charles Parish sheriff's office, M.S.T. 13, remembered that

at least once that night he saw petitioner being questioned

by “several” deputies, M.S.T. 16: "[tJhey had just quite

a few people in there," T. 308. Petiticner's father testified

that the police kept asking "'Who shot? Who shot?'" M.S.T.

70. At some point during the early morning hours, petitioner

made an oral confession to Deputy Coleman (the substance

of this confession and the circumstances under which it

was given ere unclear, since the State elected not to entex

8/ cont'd.

a few licks on him [Johnson Washington, Sr.] when they were

putting him in the car" after his arrest. T. 409. Sheldon

Cannon testified that the police beat Johnson Washington,

Sr., when they arrested him, T. 412, and Mrs. Waldorlee

White saw "(t]he deputies hitting Washington," T. 415, at

the time of the arrest. Petitioner's mother, Mrs. Hazel

Washington, testified to seeing her husband an@ son physically

abused at the time of their arrest, and she said that “the

next morning,” she went to the jail and “heard my son [peti-

tioner] screaming and hc!lering up on the third floor." T.

435.

@ 18 «

Neer eee

9

the confession at trial, T. 260) admitting that he shot Deputy

Arterbury and threw the pistol into the canal. Deputy Coleman

sent for petitioner because the other deputies “told me that on

the record it had to be Rudolph Johnson .... or ‘Pops’ ..."

M.S.T. 17 (both sets of dots appear in transcript). Also, Deputy

Coleman had interrogated petitioner's uncle, James Washington,

who had told the deputy “‘it had to be one of ... [my] nephews'"

who shot Deputy Arterbury. M.S.T. 5. When there was some delay

in bringing petitioner from his cell, Coleman went there to

9/ Before Deputy Coleman testified at petitioner's trial, the

trial court gave him the following cautionary instructions, out-

side the presence of the jury:

“ (COURT) : Mr. Coleman, the purpose of asking

this and talking to you out of the

presence of the jury is that various

types of testimony have been alluded

to by the State with reference to your

testimony. The court only wants to take

the precaution of questioning you that

there is no misunderstanding on your

part that your testimony te“ay is to

refrain from any remarks relative to an

Oral confession. And that you are to

answer the questions that counsel, both

lawyers, put to you and limit yourself

to answering only the questions they ask

you. And not by way of inference or ref-

erence or any manner are you to refer

to the confession which the defendant

gave to you orally. Do you understand?

MR. COLEMAN:

I understand.

COURT:

I'm sure you do. You are to answer any

question that any lawyer asks you. I

mean, if they specifically ask you about

an oral confession you can do nothing but

answer their question. But what I'm warn-

ing you as - I don't want you to inadvert-

ently refer to it when you are not asked

to do that. OK?

MR. COLEMAN: OK.”

— le ie i oe se

10/

question petitioner. He later testified that petitioner was

not “crying, but he looked to me like somewhat on the nervous

side,” and that petitioner was “(n]Jot shaking, no, but you could

that [sic], that he was upset in some way.” M.S.T. 16. After

petitioner's oral confession, Coleman and other deputies took

il/

him to the Waterford Canal where petitioner dove into the water

10/ The testimony of this witness is somewhat confusing. On direct

examination, at the motion to suppress hearing, he testified that

during the night petitioner “kept saying he wanted to talk to me,"

M.S.T. 3, and that petitioner had said "'Mr. Nelson, I want to

talk to you,'" M.S.T. 5, just before he confessed. Coleman added,

however, that before the confession, “I sent a deputy up to get

him to bring him [petitioner] down, to try to question him to

try to find out did he kill the deputy.” Ibid. On redirect exam-

ination, it became clear that Coleman, and not petitioner, had

initiated the conversation that led to the confession:

“THE COURT:

Well, the court doesn't think he [Deputy

Coleman] answered it. The question was,

‘Did you go up there?’ and the answer

the state is looking for and the response

I am looking for is, ‘Did this man [peti-

tioner] send for you and did you decide

to go up and question him?[{'] You never

replied.

Mr. Coleman:

A: No, sir. He did not send for me and I did

not intend to go up and question him. I

said, ‘I sent for him and when they did not

come for so long I went to see why they were

so long.[']

THE COURT:

Q: He did not ask to talk to you.

A: No, sir. Not until after I went back there."

M.S.T. 18.

ll/ Petitioner asserted, M.S.T. 41, and Deputy Coleman denied,

M.S.T. 12, that a pistol had been fired at petitioner while he

was in the water.

e 19 «

|

and recovered Deputy Arterbury's pistol. M.S.T. 10. A ballistics

expert testified that the slug which was recovered at the

Arterbury autopsy had been fired from this pistol. T. 359.

As soon as petitioner returned from the canal, he was

interrogated by Detective St. Pierre in the presence of Deputy

Coleman. Petitioner first signed a "St. Charles Parish Voluntary

Statement" form, reciting that he had been advised of his consti-

tutional right to remain silent and to have a lawyer present and

had decided to make a voluntary statement. M.S.T. 76. He also

signed a “Warning of Rights" waiver form, reciting that between

7

8:19 a.m. and 8:20 a.m., T. 298, he had been given the warnings

12/

reguired by Miranda v. Arizona, 384 U.S. 436 (1966). Detective

St. Pierre testified that “After we make an arrest, we advise

a person orally of his rights and then when we get them back to

the courthouse we make them sign a written waiver of their

rights." M.S.T. 77. Petitioner then gave a statement, which

Detective St. Pierre reduced to writing and read back to peti-

tioner. M.S.T. 79, 95. Petitioner looked over the two page state-

ment and then signed it. M.S.T. 79. Detective St. Pierre recalled

that at the time he gave the statement, petitioner “was frightened.

He just killed a man... . I would say he was afraid of us."

T. 296. While denying that he was “angry” as he questioned

petitioner, the detective admitted that he had been "[vjery up-

set" and that he had been “vehement” in his questioning. T. 300.

Petitioner's statement, which was ruled voluntary and admi.sible

12/ Detective St. Pierre stated that he wrote the word “yes” after

each of the warnings, after petitioner said he understood the

warning. M.S.T. 78.

1

1 by the trial court, T. 283, was introduced against petitioner at

| his trial, over objection:

!

"8:20 A.M., July 5, 1973. Page No. l. The

following is a true statement of Johnson

Washington, Jr., colored male, date of birth

5-30-53, born in New Orieans and now lives at

Box 18, Killona, Louisiana. This statement

is in reference to the murder of Deputy Allen

Arterbury on the night of July 4, 1973.

Rudolph Johnson and myself went to the Night

Cap lounge to a record hop. I gave a dollar

bill to Clarence Campbell and he gave me fifty

cents back. Rudolph handed Clarence a $5.00 bill

and went sit [sic] at a table. A little while later

Rudolph asked Clarence for his change. Clarence

refused to give him his change. I left and went

to the bathroom. When I came back Rudolph and

Clarence were fighting. Jimmy Scott and me tried

to break the fight up.

Randolph [sic] and I went outside. Lucille Roberts

and her husband Carlton pulled a gun on us. Someone

called the Sheriff's office while this was going on.

Then the deputy arrived a short while later. He walked

inside the bar to talk to somebody. He stayed inside

for a while, then came out and asked who was ‘Pop’.

I said I was Pop. Then he said he would like to talk

to you and Randolph [sic]. The deputy went back inside

to get Campbell. I guess he wanted to talk to all three

of us at one time.

When the deputy came back outside he was by his self.

I guess he couldn't find Campbell. He walked to the

police car and opened the trunk and got out a shot gun.

He walked on the side of the police car - wait - he

walked on the side of the police unit with the shot

gun in his hand. We were talking to each other. He

told me he didn't want any trouble, he just wanted us

to cool down. Then my daddy, Johnson Washington, Sr.,

James Washington, Rudolph Johnson, they all tried to

take the gun away from the deputy. While my daddy,

James, Rudolph -- while my daddy, James, Rudolph were

fighting with the deputy, the shot gun went off in the

air. Then I moved to the side of the deputy, pulled

his gun out of his holster and shot him one time in the

| right back side. After the deputy fell to the ground

everybody started running. James Johnson, Ronald Johnson

and myself got into a car and drove to a canal in back

of Waterford and threw the gun away. Then I went home,

and the police came a short while after.

I have read the above pages - page and a half of

—

statements and found it to be true to the best

of my knowledge. I gave it with no physical

threats or promises against me, knowing it

could be used in court against me. I sign

i| this statement because it is true."

| T. 285-287.

Petitioner was indicted for the first degree murder of

13/

Deputy Arterbury on August 9, 1973. Upon petitioner's motion,

a Lunacy Commission of three doctors (one general practitioner

and two psychiatrists) was appointed to examine him. While the

Commission reported that petitioner was “not very bright," San.

T. 18, and that he had spent nearly three years at the “Leesville

School for Retardation", San. T. 18, 27, it concluded that he

was competent to stand trial, San. T. 8, 15, 21.

During the selection of the jury at petitioner's trial,

fourteen of the veniremen examined on voir dire were excused

by the trial court for cause upon motion of the State because

they expressed conscientious scruples concerning the imposition

14/

of the death penalty.

13/ Four of petitioner's relatives were also indicted for this

first degree murder by a St. Charles Parish grand jury on this

August 9, 1973. On March 8, 1974, however, James Johnson (Indict-

ment No. 30760) pleaded guilty to an accessory-after-the-fact-to

murder charge and was sentenced to one year in jail; James Wash-

ington (Indictment No. 30763) pleaded guilty to an identical charge

and was sentenced to eight months and five days in jail; Rudolph

Johnson (Indictment No. 30761) and Johnson Washington, Sr., (Indict-

ment No. 30764) both pleaded guilty to manslaughter and were

sentenced to, respectively, five years and eighteen years in the

penitentiary.

14/ The complete text of the voir dire examination of the death

penalty views of these veniremen is attached as Appendix C, infra.

See also note infra.

At the conclusion of the State's case, petitioner introduced

the testimony of ten witnesses. T. 367-440.

At the close of the evidence, the jury was instructed, in

accordance with Louisiana's “responsive verdicts" rule, La. Code

Crim. Proc. Ann. art. 814 (1975 supp.), see pp. 25-26 infra, that

it could return verdicts of guilty of first degree murder, second

degree murder, manslaughter, or not guilty. T. 509-511. The

trial court informed the jury that "[w]Jhoever commits the crime

of first degree murder shall be punished by death.” T. 510. The

jury, after the charge was reread to it during the course of its

deliberations, T. 518-531, found petitioner guilty of first

degree murder, T. 531, and the trial court subsequently sentenced

him to death, Sent. T. 4.

On October 1, 1975, the Supreme Court of Louisiana affirmed

is/

petitioner's conviction and death sentence.

15/ On October 28, 1975, the Chief Justice of the Louisiana

Supreme Court granted petitioner a stay of execution to enable

petitioner “to seek review of his conviction and sentence in

the Supreme Court of the United States, effective to December

15, 1975." On December 10, 1975, Mr. Justice Powell granted

petitioner a stay of execution “pending the timely filing

and disposition by this Court of a petition for a writ of

certiorari."

e 91 «

— oe eee

HOW THE FEDERAL QUESTIONS WERE RAISED

AND DECIDED BELOW

I. Petitioner filed a pre-trial motion to quash the indictment

| which alleged that the death penalty authorized in La. Rev. Stat.

Ann. §14:30 constituted “cruel and unusual punishment in viola-

tion of the Eighth Amendment of the United States Constitution.”

This motion was denied, J.S.T. 37, and petitioner assigned this

ruling as error: “[(t)he statute of the State of Louisiana, Act

109, Section 1, of 1973, is in contravention of the constitution

of the United States, especially the Eighth and Fourteenth Amend-

ments and it was, therefore, error for the trial court to deny

the motion to quash." (Assignment of Error No. 6). The Supreme

Court of Louisiana rejected this contention:

"(t]he . . . [petitioner] relies upon

Furman v. Georgia, 408 U.S. 238, 92 S.Ct.

2726, 33 L.Ed.2d 346 (1972). However, in

light of that decision, we have heretofore

upheld the constitutionality of the capital

punishment provisions of the murder statute.

| See State v. Hill, La., 297 So.2d 660 (1974);

State v. Selman, La., 300 So.2d 467 (1974).

Our prior decisions are controlling. This

assignment of error is without merit."

State v. Washington, _ La. __, 321 So.2d 763, 765 (1975).

| II. Petitioner assigned as error the exclusion for cause of

veniremen on account of their conscientious scruples against

capital punishment:

"The exclusion of veniremen with conscientious

scruples against capital punishment deprived

appellant of his Sixth Amendment right to a

representative jury.” (Assignment of Error No.

13).

"The Test of Exclusion Used Below Failed to Sat-

isfy the Minimum Standards for Death-Qualification

Required by the Constitution of the United States

as Construed in Witherspoon v. Illinois, 391 U.S.

510 (1968)." (Assignment of Error No. 18).

- 22 -

mm TP

* * |

A majority of the Supreme Court of Louisiana rejected this argu-

ment on its merits:

"The . . . [petitioner] argues, however, that

the fourteen jurors were improperly excused

in violation of Witherspoon v. Illinois, 391

U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776.

In the present case, .. . we note that the

prospective jurors were informed during voir

dire examination that the sentence for first

degree murder was death. They were then

questioned concerning their attitude toward

Capital punishment. In the light of the record,

therefore, we assume that the holding of Wither-

spoon v. Illinois applies.

We have examined the record in the present case.

Each of the excused jurors was questioned at

length by the State and, in most instances, by

the trial judge. The prospective juror was ex-

cused for cause only when the testimony made

clear that under no circumstances could he re-

turn a verdict of guilty of first degree murder

or that his fixed opinions prevented an impartial

determination of guilt based upon the evidence.

We conclude that this assignment of error lacks

merit."

State v. Washington, supra, 321 So.2d at 765-766.

Ill. Petitioner filed a pretrial "Motion to Suppress Confession

and Item of Evidence Seized As a Result of the Confession,"

alleging that his confession and “a certain item of evidence

{that]) was subsequently recovered" should be suppressed because

“such evidence [was] seized in violation of . .. [petitioner's]

rights as guaranteed by the Fourth, Fifth and Sixth Amendments

of the United States Constitution." Following a hearing, peti-

tio: *r's motion was denied, M.S.T. 48, and both the pistol, T.

318, and the written confession, T. 283, were introduced at trial,

over objection. Petitioner made the following assignments of

a £2 «=

“The trial court erred when it denied

defense counsel's motion to suppress."

(Assignment of Error No. 4).

"The lower court erred when it failed to

suppress the written confession of the

defendant ... ." (Assignment of Error

No. 14).

"The lower court erred when it admitted

State exhibit 13, the alleged murder

weapon." (Assignment of Error No. 16).

Supreme Court of Louisiana rejected these contentions:

"The . . . [petitioner] argues that, prior

to making the confession, the defendant was

not effectively apprised of his rights as

enunciated in Miranda v. Arizona, 384 U.S.

436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),

and that the confession was given ‘under

grave duress, coercion and fear.'

- « - [Petitioner] also argues that the

defendant's written confession was the

product of an earlier inadmissible oral

confession. The record does reveal that

the defendant was questioned during the early

morning hours of July 5, 1973. Although the

record is not altogether clear, we assume

arguendo that the defendant made an earlier

inculpatory statement to Deputy Coleman. .. .

{t]he Miranda warnings given in conjunction

with the taking of the written and oral con-

fessions were adequate to enable the defendant

to make an informed waiver. We conclude that

the confessions were not infected by the

assumed earlier statement.

Hence, the ruling of the trial judge was

correct."

State v. Washington, supra, 321 So.2d at 767-768.

- 24 -

REASONS FOR GRANTING THE WRIT

I. THE COURT SHOULD GRANT CERTIORARI TO

CONSIDER WHETHER THE IMPOSITION AND

CARRYING OUT OF THE SENTENCE OF DEATH

FOR THE CRIME OF FIRST DEGREE MURDER

UNDER THE LAW OF LOUISIANA VIOLATES

THE EIGHTH OR FOURTEENTH AMENDMENT TO

THE CONSTITUTION OF THE UNITED STATES.

On January 22, 1976, the Court granted certiorari in

Roberts v. Louisiana, No. 75-5844, to consider a similar

question.

The Court has previously been presented with the

ergeniete that the Louisiana capital procedures in an "“aggra-

vated rape" prosecution pursuant to La. Rev. Stat. Ann. §14:42

(1974), entail the kind of arbitrary selectivity (due to

unregulated prosecutorial discretion, plea bargaining,

and executive clemency) that violates the principle of

16/

Furman v. Georgia, 408 U.S. 238 (1972). The procedures for

i7/

imposing the death penalty for first degree murder contain simi-

lar flaws and also explicitly allow unfettered sentencing discretior

16/ These arguments were presented in the Petition for Certiorari

filed in Selman v. Louisiana, No. 74-6065, (filed Feb. 24, 1975).

Pages 17-30 and 42-43 of this Petition are attached hereto as

Appendix B.

17/ Prior to 1973, Louisiana had not recognized degrees of

murder. In that year, La. Acts 1973, Act 109 (amending La. Rev.

Stat. Ann. §14:30 (1967)), defining the capital crime of first

degree murder, La. Acts 1973, Act 110 (amending La. Rev. Stat.

Ann. §14:29 (1967)), dividing “criminal homicide" into four

grades (first degree murder, second degree murder, manslaughter,

and negligent homicide), and La. Acts. 1973, Act 111 (enacting

La. Rev. Stat. Ann. §14:30.1), defining a new non-capital crime

of second degree murder were enacted.

e 98 «

on the part of the jury (although the provisions allowing the

jury to recommend a life sentence as punishment for a capital

1s/

charge were repealed), since in every first degree murder

case, regardless of the facts, the jury is instructed that it

may render a "responsive" verdict of guilty of second degree

murder or manslaughter, with non-capital consequences. La. Code

Crim. P. Ann. art. 814 (A) (1)(1975 supp.).

The importance of this Court's grant of certiorari in

Roberts v. Louisiana, No. 75-5844, Jurek v. Texas, No. 75-5394,

Greag v. Georgia, No. 74-6257, Proffitt v. Florida, No. 75-5706,

and Woodson v. North Carolina, No. 75-5491, is highlighted by

18/ At the time of Furman, article 817,La. Code Crim. Proc.

Ann., provided:

"In a capital case the jury may qualify its

verdict of guilty with the addition of the

words ‘without capital punishment’ in which

case the punishment shall be imprisonment at

hard labor for life.

In noncapital cases, any qualification of or

addition to a verdict of guilty, beyond a

specification of the offense as to which the

verdict is found, is without effect upon the

finding."

In 1973, article 817 was amended to provide:

“Any qualification of or addition to a verdict

of guilty, beyond a specification of the

offense as to which the verdict is found, is

without effect upon the finding."

» 9% «

— EE

the recent decision of the Massachusetts Supreme Judicial Court

in Commonwealth v. O'Neal, Mass. P N.E.2d . Mass.

19/

Adv. Sh. (1975) 3502, attached hereto as Appendix D, which

held a “mandatory” death penalty for murder during the course

of a rape, imposed pursuant to Mass. Gen. L. c.265, §2, pro-

hibited by the “cruel or unusual punishments" clause of Article

20/

26 of the Massachusetts Declaration of Rights.

19/ While the O'Neal decision rests on state constitutional

grounds, see also People v. Anderson, 6 Cal.3d 628, 493 P.2d

880, 100 Cal. Rptr. 152 (1972), the Massachusetts court's

reasoning and its discussion of federal precedents is relevant

to this Court's consideration of the question of the Eighth

Amendment constitutionality of capital punishment. "I believe

that analysis of the issues raised in this case under our

State Constitution bears strong resemblance to the analysis

under the Federal Constitution." Commonwealth v. O'Neal, supra,

Mass. Adv. Sh. (1975) at 3504 n.1 (concurring opinion of Mr.

Chief Justice Tauro).

20 / Mr. Chief Justice Tauro and Mr. Justice Hennessey also

relied on Articles 1] 10 and 12 of the Massachusetts Declaration

of Rights (which, collectively, guarantee criminal defendants

due process of law).

e 37 «

— ee ee ee ee eae

II. THE COURT SHOULD GRANT CERTIORARI

TO CONSIDER WHETHER THE EXCLUSION

FOR CAUSE OF FOURTEEN VENIREMEN ON

THE GROUNDS OF THEIR EXPRESSED

ATTITUDES TOWARD THE DEATH PENALTY

VIOLATED PETITIONER'S RIGHTS UNDER

THE SIXTH OR FOURTEENTH AMENDMENT

TO THE CONSTITUTION OF THE UNITED

STATES.

A. The Test of Exclusion Applied by the Court Below

Did Not Meet the Minimum Standards Required by the

Constitution As Construed in Witherspoon v. Illinois,

391 U.S. 510 (1968).

During the selection of petitioner's jury, the State

was permitted to challenge for cause fourteen veniremen because

of their expression of conscientious scruples against the death

2Y

penalty. The Supreme Court of Louisiana assumed that Wither-

spoon v. Illinois, 391 U.S. 510 (1968) was applicable to

Louisiana's “mandatory” death penalty procedures, but it ruled

that the requiremei.cs of Witherspoon had not been violated:

“Each of the excused jurors was

questioned at length by the State and,

in most instances, by the trial judge.

The prospective juror was excused for

cause only when the testimony made clear

that under no circumstances could he re-

turn a verdict of guilty of first degree

murder or that his fixed opinions prevented

an impartial determination of guilt based

upon the evidence."

State v. Washington, __La.__, 321 So.2d 763, 766 (1975).

2Y The fourteen veniremen excluded for cause on account of

capital punishment scruples were: Monroe Douglas, J.S.T. 153-155;

Harold E. Crow, J.S.T. 156-160; Steve Hill, J.S.T. 255-256;

Floyd A. Williams, J.S.T. 269-270, 275, 276; Roy A. Mongrue, J.

S.T. 272-273, 275,276; James T. Breaux, J.S.T. 273-274, 275, 276;

Ronald L. Brown, J.S.T. 271-272, 274; William M. Carter, J.S.T.

304-305; James Smith, J.S.T. 313-323; James G. Volta, J.S.T. 377-

378, 380; Alvin J. Folse, J.S.T. 378-380; A.J. Schillacti, J.S.T.

456-460; Haywood J. Jackson, J.S.T. 519-520; Edward W. James,

J.S.T. 655-656. The full voir dire record of each of these four-

teen examinations is appended as Appendix C, infra.

@ 98 «

Petitioner respectfully submits that this conclusion does not

accurately characterize the voir dire record in this case and

that veniremen were in fact excluded who merely “voiced general

objections to the death penalty or expressed conscientious or

religious scruples against its infliction.” Witherspoon v.

Illinois, supra, 391 U.S. at 522.

First, a great many of these exclusions were based on

nothing more than a venireman's vague and general opposition

to the death penalty and not on a clear and firm statement by

the juror that the presence of the death penalty would prevent

him or her from acting impartially or would cause an automatic

vote of "not guilty." When asked if they could return a verdict re-

sulting in the death penalty, veniremen were excluded who answered,

“I don't think I would," "I think I would be real hesitant about

it," "I don't believe I would," and “I don't think I could.”

For exanple, Venireman Monroe Douglas was excluded for cause

on the basis of the following exchange:

"Q. [the district attorney] Do you have any moral

or religious scruples against the infliction

of the death penalty?

A. j[venireman Douglas]: Well, that's kind of a hard

question.

Q. It's a hard business.

A. Now, it tends into that.

Q. I'm sorry, I can't hear you very well.

A. It tends into that and what's been done about it.

Q. Well, I'm asking you, sir, if you were convinced

of the guilt of an accused beyond any reasonable

doubt, any accused who was charged with a capital

crime, could you consider a verdict of guilty

knowing that it would carry the death penalty or

are your scruples against the death penalty so

strong that you wouldn't even consider that?

That's what I'm asking you.

A. I wouldn't want to put a fellow to death.

- 29 «

Q.

A.

Are you telling me then, sir, that regardless

if you were chosen on this jury, that regardless

of what the evidence from that witness chair

showed that you would not even consider a

verdict of guilty knowing that it would carry

the death penalty?

See, my bible tellsme, "Thou shalt not kill.”

I'm a Baptist.

Yes, sir, but I would like for you to answer my

question yes or no. Would you under any circum-

stances ever vote for the death penalty?

No, sir, I don't think I would.

That is, regardless of what the evidence from

this witness chair may show, you would not vote

for a verdict that would necessarily carry the

death penalty?

No, sir, I don't think so."

J.S.T. 154-155 (emphasis added). Venireman Harold E. Crow was

excluded for cause on the basis of the following exchange:

"MR,

A.

SMITH [for the State]: Mr. Faucheavx, do you

have any religious scruples against the death

penalty?

FAUCHEAUX: No, sir

SMITH: I take it .. . how about you, Mr.

Made re?

MADERE: No, sir.

SMITH: Mr. Crow?

CROW: Well, I think I would be real hesitant

about it.

Well, now, y really didn't answer that

question. All of us might be hesitant. If

you were chosen as a juror, sir, you would take

an oath to perform your duty. I'll phrase the

question to you as I phrased it to Mr. Douglas.

Are you telling me, sir, that while you have

these scruples, that regardless of what the

evidence showed from the witness chair, that

you would never under any circumstances vote for

a verdict knowing that that verdict would

necessarily carry the death penalty?

I don't believe I would."

J.S.T. 156-157 (emphasis added). Venireman Steve Hill was

excluded for cause when he stated:

"I don't think I could vote to take a man's

life, no, sir. A life sentence, maybe, or

something like that.”

J.S.T. 255 (emphasis added). Venireman Alvin J. Folse was

°° ©

=

excluded for cause on the basis of the following exchange:

"MR. FOLSE: I don't believe in the death penalty

either.

Q. [the district attorney]: I'll ask you if you

have religious, moral or conscientious

scruples against the infliction of the death

penalty?

A. It's my feeling.

Q. Sir?

A. It's just my feelings, personal feelings.

Q. How long have you had those feelings?

A. I've always had them.

Q. Then I'll ask you the same question I asked

Mr. Volta. Are your feelings against the

death penalty so strong that you would not

even consider rendering a verdict or voting

for a verdict that necessarily would carry

the death penalty regardless of what the

evidence showed?

A. I don't think I could.

Q. You don't think you could even consider it, is

that right?

A. Yes.

Q. In other words, what I'm trying to get at, if

you will answer it plain, sir, is if you would

not consider the death penalty at all regardless

of what the evidence showed?

A. I don't think I could.”

J.S.T. 378-379 (emphasis added).

Second, veniremen's scruples against the imposition of

capital punishment in all circumstances were not made “unmistak-

ably clear," as required by Witherspoon v. Illinois, supra, 391

U.S. at 522, n.21, in the absence of an instruction by the trial

court that it is the civic duty of each venireman tosit as a

juror if he possibly can. As this Court declared in Boulden v,

Holman, 394 U.S. 478, 483-484 (1969): "it is entirely possible

that a person who has ‘a fixed opinion against’ or who does not

‘believe in' capital punishment might nevertheless be perfectly

able as a juror to abide by existing law -- to follow conscien-

tiously the instructions of a trial judge and to consider fairly

the imposition of the death sentence in a particular case." A

venireman must be instructed that the law requires him to

>

-

@ e |

“subordinate his personal views to what he .. . [perceives]

to be his duty to abide by his oath as a juror and to obey the

law of the State,” Witherspoon v. Illinois, supra, 391 U.S. at

514-515 n.7. Although a number of the excluded veniremen here

stated that they would “automatically” vote against a verdict

which entailed the imposition of a death seatence none of them

was given any instruction on their duty to subor: inate their

beliefs to the law of Louisiana that would be given them by the

trial court. See, e.g., J.S.T. 269-270 (exclusion for cause of

venireman Floyd A. Williams); J.S.T. 272-273 (exclusion for

cause of venireman Roy A. Mongrue); J.S.T. 274 (exclusion for

cause of venireman Ronald L. Brown).

Moreover, the voir dire was in some cases simply too brief

to determine with “unmistakable” certainty, Witherspoon v. Illinois

supra, 391 U.S. at 522 n.21, that a venireman was properly ex-

cluded. For quick and seemingly unequivocal answers to questions

concerning the death penalty often do not reveal a venireman's

true sentiments. Here the trial court never instructed the

veniremen that they would have no role in sentencing, and

that they would be instructed upon a number of “responsive

verdicts" which did not entail imposition of the death penalty;

the veniremen thus were left in the dark as to their exact

role. Had they understood that sentencing was not their

responsibility and that they would be able to return a

number of different guilty verdicts,it is possible that they

might have been able to serve. But the perfunctory voir

dire examination did not pause to enlighten them. See,

e.g-, J.S.T. 377-378 (exclusion for cause of venireman

© 32 -

James G. Volta. Cf. J.S.T. 655-656 (exclusion for cause of

venireman Edward W. James).

Finally, a number of veniremen who expressed honest doubts

about whether they could return a capital verdict nevertheless

were pressured into giving a “yes” or “no" answer which could

not accurately reflect their ambiguous feelings toward capital

punishment. See é€.g., J.S.T. 313-323 (exclusion for cause of

venireman James Smith); J.S.T. 456-460 (exclusion for cause of

venireman A.J. Schillaci). A venireman who answers that he

doesn't honestly know whether he could render a death verdict

is candidly and accurately reporting his feelings, and it is

just such veniremen which Witherspoon protects. It is impermissible

to force such jurors to give an unequivocal answer as to whether

they would return a capital verdict. Several veniremen, after

expressing doubts as to their feelings about the death penalty,

were brow-beaten into giving a flat answer as to whether they

could return a capital verdict, and were excluded for cause on

the basis of their answers. Venireman Schillaci, for example,

stated that he had “mixed emotions" about capital punishment,

but that he would not have any problem determining guilt or

innocence; he was excluded for cause despite the fact that he

failed to state unequivocally that he could not return a capital

verdict: ;

"MR. SMITH [for the State): ... [DJo you

have any such scruples against the

infliction of the death penalty?

MR. SCHILLACI: Well, I would have to know the

complete circumstances.

Q. Well, that, sir... [3 dots in transcript]

= 2

A. I don't know how old this boy is or if he's

a hardened criminal or .. . [3 dots in

transcript] I've got mixed emotions about

\ capital - about the death penalty. I'm not

i against it, but I have reservations.

Q. Are you telling me that in a proper case vou

; could consider bringing in a verdict knowing

that it would carry the death penalty?

A. I would be influenced by the circumstances that

prevailed, the individual, the circumstances.

Q. Would that be sympathy for the accused?

A. Not so much sympathy for the accused as a

general belief in humanity and humanness.

I don't want to go into the emotional aspects.

Q. Well, I would like for you to, really. This

is something we need to know.

A. I woulda have to know a lot more than I know

about this individual, what kind of person

he is, what kind of background he has, what

his education is, how old is he, what prompted

the act if he did commit the act.

I really don't know. I'd like to have an

alternative. I don't think I would have any

problem finding a person guilty or not guilty.

QO. But where that verdict of guilty necessarily

imposes the death penalty, would that give

you a problem?

A. It would give me a problem, yes.

Q. Well, is your attitude toward the death penalty,

sir, such that it would prevent you from making

an impartial decision as to the defendant's guilt

where you know that a verdict of guilty would

carry the death penalty?

j A. Frankly, I'm quite surprised to find this boy

so young. I wouldn't have any problems with

a hardened criminal type that had been prosecuted

and in and out of jail or something of this type.

But, really, I would almost have to know some

background. It would be difficult for me to

want to take the life of a person.

COURT: Mr. Schillaci is excused with the court's

thanks."

J.S.T. 456, 460. Venireman James Smith stated that:

“I feel that the death penalty is not, in itself,

is not basically wrong. I believe it's even

necessary in many cases. My main objection is

that I am not sure that the degree of guilt

that I would require to sentence a man to death

is suitable under the terms as the court would

; present them."

J.S.T. 313-314. He stated, however, that he would have to be

extremely convinced of a capital defendant's guilt before he

could return a verdict whose consequence was a death penalty,

id. at 315-316, but he again stated:

"I will say again that I believe capital

punishment is a necessity. I will also

say that I have always, as far as I can

remember, believed capital punishment to

be a necessity.”

Q. [defense counsel] .. . And it is also your

testimony that you are not of the opinion that

the death penalty as per se, is bad or unconsti-

tutional or should not be applied?

A. I also said that.

Q. So that it is your testimony that in some

instances the death penalty would be warranted.

Is that correct?

A. That is correct."

Id. at 318-319. Nevertheless, venireman Smith was badgered by

extensive and repetitive questioning as to his views on the

death penalty and was finally pressured into stating that "the

State's definition of reasonable doubt would not bring...

guilt to a degree that would be necessary for me to convict a

man." Id. at 321. Venireman Smith's subsequent exclusion was

plain error under Witherspoon since this questioning pressured

him into the premature resolution of a difficult issue as to

which he obviously felt great uncertainty.

B. The Exclusion cf Veniremen with Conscientious Scruples

Against Capital Punishment Deprived Petitioner of His

Sixth Amendment Right to a Representative Jury.

In order to avoid subjecting the Court to redundant

argument, petitioner adopts the “Reasons for Granting the Writ"

section of the Petition for Writ of Certiorari to the Supreme

Court of Florida, Hallman v. Florida, No. 74-6168 (filed March

11, 1975) at 72-78 (attached as Appendix D, infra).

—

III. THE COURT SHOULD GRANT CERTIORARI

TO CONSIDER WHETHER INTRODUCTION

AT PETITIONER'S CAPITAL TRIAL OF

HIS WRITTEN CONFESSION AND OF A

PISTOL WHICH PETITIONER RETRIEVED

FOR THE POLICE VIOIATED HIS FIFTH

AMENDMENT RIGHT AGAINST COMPULSORY

SELF INCRIMINATION WHEN THIS STATEMENT

AND PHYSICAL EVIDENCE WERE OBTAINED AS

A DIRECT CONSEQUENCE OF AN EARLIER

COERCED ORAL CONFESSION WHICH WAS NOT

INTRODUCED,

The Supreme Court of Louisiana has countenanced at a

capital trial, the admission of testimonial and physical evi-

dence obtained by means of a coerced oral confession. While

the court below found petitioner's written statement to be

voluntary and given in conformity with the requirements of

Miranda v. Arizona, 384 U.S. 436 (1966), it failed to recognize

that this confession (and the murder weapon) were the fruits

22/

of an earlier illegally obtained confession. Moreover, the

Louisiana Supreme Court applied an erroneous “totality of the

circumstances" test to determine that this evidence was

admissible and implicitly held that later Miranda warnings

erased the consequences of earlier duress and coercion. Here,

22/ Cf. Stein v. New York, 346 U.S. 156, 185 (1953):

"The limits in any case depend upon a

weighing of the circumstances of pressure

against the power of resistance of the

person confessing. What would be over-

powering to the weak of will or mind

might be utterly ineffective against

an experienced criminal."

— 2

the will of a legally unsophisticated, young, and frightened

defendant, charged with a heinous crime and unadvised by

counsel, was overborne during an intense stationhouse inter-

rogation,and a statement was obtained from him which, though

not introduced at trial, led the police to other evidence

and was used to elicit from petitioner a second written

confession which was introduced. Significant questions are

presented as to the admissibility of evidence obtained as a

result of a coerced confession.

The record below, see pp. -21 Supra, reveals that peti-

tioner was a black, “not very bright,” San. T. 18, semiliter-

27

ate twenty-year-old, who had a fourth grade, M.S.T. 33, or

23/ Petitioner testified that "I can read a little bit but

I can't quite understand. Some things I can understand and

some things I can't @ad it and then understand it." M.S.T. 34.

When petitioner was asked to read his written statement (the

police had testified that after they transcribed his state-

ment, they read it back to him and then gave it to him to

read, M.S.T. 95), the following occurred (this reading should

be compared to the written statement, quoted at pp. 19-20,

supra):

"If you can't read a word advise the court

that you can't read a word and then skip on

to the next word.

JOHNSON WASHINGTON, JR. (cont'd with document)

The following is a true of Johnson Washington,

Jr. (and I don't know this word here) Fifth, 30,

born in and 18 Kittona. Dis is in - of on the night

of July 4, 73. Rudolf Johnson and myself went to

the Night Cap Lounge, to the Night Cap, to the

Night Cap to hop. I give a dollar bill to (what's

that name, I don't know) and he give me 50 cents

back. Rudolf, Rudolf, a $5.00 bill and went and Sat

at a back table, a table a little while. Rudolf

asked for his change, to give him his change. I

left and went to the bathroom. When I came back

Rudolf and ------ was fighting. Jimmie Scott and

me tried to the fight up but I went outside and,

and, her husband and her hand put a gun on us.

ee = 37 =

"6th or 7th grade," San. T. 33, education, and who had attend-

the state Leesville School for the Retarded for about three :

years, San. T. 18, 27. The Louisiana Supreme Court concluded

that "“(tjhere can be no doubt that .. . [petitioner] was of

low intellect." State v. Washington, _La.__, 321 So. 2d 763,

767 (1975). He apparently had no prior criminal record. Late

on July 4, 1973, he was arrested for a particularly heinous

crime: the murder of a white police officer. The Parish was

23/ cont'd.

Someone calleded why this was, why this was

going on. %® short while later he waikeded

inside the § rr to, to, tell, to tell, to,

told someone. He stayed inside for a while

then come, then come out and asked who, whe

was ‘Pops’. I said I was 'Pops'. The he

Then he, he said he would like to tell, to

tell, tell to Rudolf and you. The, the, the

went back inside to, to get I guess he wanted

to tell, to two or three of us at once. When

the came back outside he was by hisself. I

guess he, I guess he couldn't find - he walked

to the and open and opened it and got out and

got out gun. He walkeded on the side of it with

the gun. We was telling, we were telling to each

other. He told me, he told me, e,e,e,e,e,e€,e,

told me, he didn't want any--he just wanted us

to------ then my-then my dad, Johnson Washington,

S., and James Washington, Rudolf Johnson, they all,

they all, they all trieded to trieded to, trieded

to, trieded to, trieded to the gun away from the

while my, my dad, James Rudolf were fighting with

the the the the gun went off, the gun went off in,

in, in, in, in, air, the air. Then, then I to the

side of it he his gun out of it him, him went one

time in the in the, the the for to the James Johnson,

Rudolf Johnson and myself got into the car and of

and, and the and, and the gun. Then I went, then

I went home and her and they came a while after I

had, I had the, and, and, and, and, and, half of on,

on, on the and the to be and the to be to, to, to, the

of lmy... . 1 give it with no---the, the, the,

be in the, be in, in me-- I, I, I, I, dis the, the

is. That is all on here."

M.S.T. 35-36 (the foregoing is a verbatim reproduction of the

transcript).

- 38 -

7

in an uproar: an all-out manhunt was initiated, "{j)ust

about everybody [on the police force] was out there," T. 294,

and a number of arrests were made. Petitioner was forcibly,

M.S.T. 86, arrested at his home by a number of heavily armed

deputies, although they testified that they gave him the

Miranda warnings, see p. 13 supra.

Petitioner was one of at least five persons arrested

for the murder of Deputy Arterbury. The police were uncertain

who fired the fatal shot, and kept asking their prisoners,

"*Who shot? Who shot?'", M.S.T. 70. At the stationhouse,

petitioner was interrogated several times throughout the

night by large numbexs of police officers, see pp. 14-15

Supra, and he appeared “nervous”, M.S.T. 16, “upset", id.,

and "frightened", T. 296. The questioning of the interrogat- |

ing officers was, by their account, "vehement", T. 300. Peti-

tioner introduced evidence, which was controverted by the

24/

State, that he was physically beaten during the course of

24/ The record in this case, althcugh it is frequently con-

fusing and self-contradictory, will simply not support many

of the conclusions of the Louisiana Supreme Court concerning

the question whether petitioner was physically abused. The

court asserts that

“Officers Loque [sic] and Coleman, who

were at the jail during much of the morning

of July 5, 1973, testified that they were able

to view the . . . [petitioner] in his cell

frequently and saw no evidence of intimidation

or physical abuse. Officers St. Pierre and Kimble

testified to the same effect. Officer Gary

Zeringue, who photographed the defendant at about

8:00 a.m., on July 5, 1973, described the...

[petitioner] as looking ‘normal.' Dr. Wilson

Couch, who treated the . . . [petitioner] on

August 1, 1973, saw no signs of physical abuse."

State v. Washington, supra, 321 So.2d at 767.

» 6-

these interrogations, see note 8, supra. At some point during the

early morning hours of July 5, 1973, petitioner gave an oral

statement to the police, admitting his complicity in the murder

24/ cont'd.

Although Zeringue did observe that petitioner looked "normal",

M.S.T. 25, when he photographed him, this occurred not at 8:00

aem., July 5, but instead shortly after petitioner's arrest late

on July 4 when petitioner was brought to the courthouse before the

interrogation began, M.S.T. 23. Zeringue further testified that

this was the only time he saw petitioner in the July 4-5 period.

M.S.T. 25.

Detective St. Pierre and Deputy Kimble did not testify that

petitioner was not physically abused between the time of his

arrest and the time of his formal interrogation at 8:00 a.nm.,

July 5. Detective St. Pierre arrested petitioner at 10:30 or

10:45 p.m., July 4, M.S.T. 75. He turned petitioner over to

officers who took him back to the station house, and "I couldn't

tell you what happened to him after I turned him over," M.S.T. 91.

Detective St. Pierre next saw petitioner “around 6:30 or 7:00 the

next morning, July 5, ibid. Deputy Kimble was present at the time

of petitioner's arrest and drove petitioner to the station house;

he testified that no one “physically abuse[d]" M.S.T. 99, peti-

tioner when he was arrested or when he was transported to the

station house, M.S.T. 100. Deputy Kimble testified, however, that

after he turned petitioner over for booking he had “{no]) further

contact with him," ibid., either "“[t]Jhat night," M.S.T. 101, or

"the next day," ibid.

Dr. Couch testified that he first saw petitioner on August

17, 1973, six weeks after the arrest, and not on August 1, 1973,

B.8.T. 43.

The testimony of Officers Laque and Coleman was contradictory

in several important respects. Laque, the jailer, testified that

he locked petitioner in a jail cell about midnight, M.S.T. 26, and

that each time he made his rounds that night, petitioner was lying

on his bed. M.S.T. 27. Laque stated that he never saw anyone

questioning petitioner that night because questioning never took

place in the jail, ibid., although he admitted that petitioner

could have been removed from his cell in his, Laque's, absence

since the other deputies had a key to the cell, M.S.T. 30. Laque

added that petitioner was in his cell at 8:00 a.m. when he was

served breakfast. M.S.T. 31-32. Coleman testified, however, that

he saw petitioner ten or twelve times during the night in different

rooms at the police station and that petitioner was always awake

when he saw him, M.S.T. 3-4. Shortly after 6:45 a.m., M.S.T. 4,

Coleman elicited an oral confession from petitioner, and he immed-

iately took petitioner to a canal to retrieve the murder weapon.

=—

of Deputy Arterbury. Petitioner also said he would lead the

police to where he had disposed of the murder weapon. He re-

trieved the pistol from a canal and subsequently gave a statement

to the police, apparently recapitulating his earlier confession,

etees he had been given Miranda warnings and had signed a waiver

of his rights.

The trial court made no formal findings of fact concerning

the voluntariness of the written confession, but on the basis of

a pre-trial hearing and of a hearing outside the presence of the jury

at trial, it ruled this confession admissible. T. 283.

Since the State chose not to introduce petitioner's oral confession,

the trial court made no formal findings of facts na@ any ruling

on the voluntariness or admissibility of this earlier confession.

The Louisiana Supreme Court ruled that the written confession

was not infected by any involuntariness of the earlier confession:

24/ cont'd.

When they returned, he took petitioner straight into Deputy St.

Pierre's office at 8:00 a.m., T. 309-311.

Several officers testified that they saw petitioner being

questioned by a large number of people during the night but these

witnesses were consistently unable to recall who the interrogators

were: "“(T)here was a lot of policemen there .... They had a

lot of them there . .. . I couldn't pinpoint anybody that they

had there." (Deputy Walker, T. 256); “They had just quite a few

people in there. I couldn't just tell you right offhand, name

them," (Deputy Coleman, T. 308); "“[{I] don't recall who the

officers were who were in there," (Detective St. Pierre, T. 237).

» 61 «

“the .. . [petitioner] also argues that...

{his] written confession was the product of

an earlier inadmissible oral confession. The

record does reveal that the . .. [petitioner]

was questioned during the early morning hours

of July 5, 1973. Although the record is not

altogether clear, we assume arguendo (25/])

that the .. . [petitioner] made an earlier

inculpatory statement to Deputy Coleman.

The State did not introduce the earlier

statement at trial. Since Miranda warnings

were properly given upon ... [petitioner's]

arrest, we find no basis in the record for

holding that the earlier statement was inad-

missible. Moreover, considering the ‘totality

of the circumstances,’ we hold that the...

[petitioner's] later confession was sufficiently

insulated from the earlier statement. See Clewis

v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d

423 (1967); Darwin v. Connecticut, 391 U.S. 346,

88 S.Ct. 1488, 20 L.Ed.2d 630 (1968).

The record reflects that the . . . [petitioner's]

confession, which was admitted in evidence, was

given sometime later in the morning to Officer St.

Pierre, who had not seen the .. . [petitioner] since

shortly after his arrest. Our earlier analysis

assures us that the Miranda warnings given in con-

junction with the taking of the written and oral

confessions were adequate to enable the...

[petitioner] to make an informed waiver. We

conclude that the confessions were not infected

by the assumed earlier statement.”

Washington v. State, supra, 321 So.2d at 768.

25/ There can be no doubt that petitioner made "an earlier

inculpatory statement to Deputy Coleman" since he led the deputy

to the murder weapon before the written confession was taken.

M.S.T. 5-8; T. 309, 317, 327.

o 4 «

This ruling is manifestly erroneous. It is clear that a

confession which is the direct consequence of an earlier coerced

confession must be suppressed, regardless of how “voluntary” the

second confession appears to be, when considered on its own.

However, the Louisiana Supreme Cou.+ has incorrectly assigned

the burden of proof on the issue whether the second confession

is “sufficiently insulated" from the first. As this Court

recognized long ago,

“after an accused has once let the cat out

of the bag by confession, no matter what

the inducement, he is never thereafter free

of the psychological and practical disadvantages

of having confessed. He can never get the cat

back in the bag ... . In such a sense, a

later confession always may be looked upon as

fruit of the first."

United States v. Bayer, 331 U.S. 532, 540 (1947).

The proper inguiry in this case is not whether the second

confession is voluntary under a "totality of the circumstances"

test but rather whether the State has borne the burden of

affirmatively showing that the second confession is uninfluenced

26/

by the first. As Justice Harlan wrote, concurring in the Court's

26/ Cf. Harrison v. United States, 392 U.S. 219, 225, n.12 (1968):

"when the prosecution seeks to use testimony given after the

introduction in evidence of a confession unlawfully obtained, it

has the burden of proving the defendant's testimony was not pro-

duced by the illegal use of his confession at trial."

e @3 o

judgment in Darwin v. Connecticut, 391 U.S. 346 (1968), another

multiple confession case:

“A principal reason why a suspect

might make a second or third confession

is simply that, having already confessed

once or twice, he might think he has little

to lose by repetition. If a first confession

is not shown to be voluntary, I do not think

a later confession that is merely a direct

product of the earlier one should be held to

be voluntary. It would be neither conducive

to good police work, nor fair to a suspect, to

allow the erroneous impression that he has

nothing to lose to play the major role in a

defendant's decision to speak a second or

third time.

In consequence, when the prosecution seeks

to use a confession uttered after an earlier

one not found to be voluntary, it has, in my

view, the burden of proving not only that the

later confession was not itself the product

of improper threats or promises or coercive

conditions, but also that it was not directly

produced by the existence of the earlier con-

fession.”"

391 U.S. at 350-351. This test was subsequently adopted by the

Court in Robinson v. Tennessee, 392 U.S. 666 (1968) and in

Harrison v. United States, 392 U.S. 219, 225 n.12 (1968) (dictum).

See also Beecher v. Alabama, 389 U.S. 35, 36 n.2 (1967); Clewis

v. Texas, 386 U.S. 707, 710 (1967); Beecher v. Alabama, 408 U.S.

234, 236-237 (1972). The State made no showing here that the

second confession was not a “direct product of the earlier one.”

The Louisiana Supreme Court erroneously concluded that the

Miranda warnings administered before petitioner's written state-

ment was taken were a “‘cure-all'", Brown v. Illinois, __U.S.__.,

45 L.Ed.2d 416, 426 (1975), for the earlier violation of petitioner’

Fifth Amendment rights.

e 46 @

The .357 magnum pistol belonging to Deputy Arterbury was

also retrieved as a direct consequence of the oral confession,

and the question left unresolved in Michigan v. Tucker, 417 U.S.

433 (1974) is thus presented here: does the Fifth Amendment

bar the State from using physical evidence derivatively obtained

as a result of an involuntary confession? The Court emphasized

in Tucker that the failure of the police to warn a suspect of

his right to have counsel appointed if he could not afford to

retain counsel “did not abridge respondent's constitutional

privilege against compulsory self-incrimination, but departed

only from the prophylactic standards . . .laid down by this

Court in Miranda to safeguare that privilege.” 417 U.S. at 446.

The testimony of a witness, whose identity was disclosed to the

police by petitioner Tucker after the deficient Miranda warning

was given, was therefore held admissible.

The present case does not involve violation of simply a

“prophylactic” rule whose purpose is to protect the underlying

privilege or to deter police conduct which invades the privilege.

Instead, petitioner's basic right not to be coerced into incrim-

inating himself was infringed here, a right which is founded not

solely on the unreliability of the evidence cbtained through

coercion:

“It is now axiomatic that a defendant in

a criminal case is deprived of due process

of law if his conviction is founded, in whole

or in part, upon an involuntary confession,

without regard for the truth or falsity of the

confession, . . . and even though there is

ample evidence aside from the confession to

support the conviction.”

a 46 @

Jackson v. Denno, 378 U.S. 368, 376 (1964). The Fifth !

Amendment prohibits the use of involuntary confessions and

their fruits not only because such confessions may be unreliable

our society that important human values are sacrificed where an

agency of the government, in the course of securing a conviction,

wrings a confession out of an accused against his will,” Blackburn

v. Alabama, 361 U.S. 199, 206-207 (1960), and because of the “deep-

rooted feeling that the police must obey the law while enforcing

the law; that in the end life and liberty can be as much endangered

from illegal methods used to convict those thought to be criminals

as from the actual‘ criminals themselves." Spano v. New York,

360 U.S. 315, 320-321 (1959). See also Manness v. Meyers, __U.S.

__, 42 L.Ed.2d 574, 585 (1975).

In Kastigar v. United States, 406 U.S. 441 (1972), a

case involving derivative evidence obtained as a result of an

immunity grant, the Court compared the respective positions of

“a defendant against whom incriminating evidence has been obtained

through a grant of immunity” with “a defendant who asserts a

Fifth Amendment coerced-confession claim," 406 U.S. at 461. It

concluded that the only difference was that the latter defendant

“must first prevail in a voluntariness hearing before his con-

fession and evidence derived from it become inadmissible,“ 406

U.S. at 462. The plain implication is . *, once involuntariness

of a confession is shown, the prosecution must shoulder “the

affirmative duty to prove that the evidence it proposes to use

is derived from a legitimate source wholly independent of the

[confession]," 406 U.S. at 460.

Conclusion

Certiorari should be granted to consider the Fifth

Amendment questions raised by the introduction at petitioner's

; trial of his written confession and of Deputy Arterbury's

pistol.

RESPECTFULLY SUBMITTED,

Vso, < Ben

JACQUES’ F. BEZOU

1304 First National Bank of

Commerce Building

New Orleans, Louisiana 70112

JACK GREENBERG

JAMES M. NABRIT, III

DAVID E. KENDALL

PEGGY C. DAVIS

10 Columbus Circle

New York, New York 10019

ANTHONY G. AMSTERDAM

Stanford University Law School

Stanford, California 94305

ATTORNEYS FOR PETITIONER

« 49 «

State v. Washington,

__ba._. 321 So.2d 763

(1975).

.

-_

“4

‘

—_ . —_— . -_-=- ‘ mn le lll a , ow —_

—~

STATE v. WASHINGTON la 163

Cite ax, La.. 321 Sood 1

STATE of Lowistana

v.

Jehnson WASHINGTON, Jr.

Ne. $5806.

Supceme Court of Louisiana.

Oct. 1, 1975.

Defendant was convicted before the

2h Tudicial District Court, Parish of St.

Charles, Thomas J. Malik, J., of first-de-

gree murder, and he appealed. The Su-

preme Court, Sanders, C. J., held that man-

datory death sentence imposed upon de-

fendant, who had been convicted of first-

degree murder of a deputy sheriff, was not

cruel and unusua! punishment nor a denial

of defendant's right to equal protection;

that exclusion for cause of 14 jurors fol-

lowing determination that such jurors

could not return verdict of guilty of first-

degree murder knowing that such verdict

mandated death sentence or that their

fixed opinions on capital punishment pre-

_ vented impartial determination of guilt

based upon the evidence did not violate ban

on exclusion for cause of jurors who

merely voice general objections to capital

punishment or express conscientious or re-

ligious scruples against its infliction; and

that defendant's written confession was ad-

missible. 2

Affirmed.

Tate, J. filed concurring statement.

Calogero, J., filed concurring opinion.

1. Constitutional Law ©=250.3(!)

” Criminal Law C>1213

Imposition of mandatory death sen-

tence upon defendant, who had been con-

victed of first-degree murder of a deputy

sheriff, under first-degree murder statute

was not crue! and unusual punishment nor

a denia! of defendant's right to equal pro-

tection. LSA-R.S. 14:30; U.S.C.A.Const.

Amends. 8, 14.

; {1a}

2. Jury 108

Holding that sentence of death cannot

be carried out if jury that imposed or rec-

ommended was chosen by excluding ve-

niremen for cause simply because they

voiced general objections to death penalty

or expressed conscientions or religious

scruples against its infliction is mot strictly

applicable to exclusion of jurors for cause

under statutory scheme in which sentence

is not “imposed or recoinmended™ by jury.

LSA-C.Cr.P. arts. 798(2), 817; LSA-R.S.

14:30.

3 Jury 108

Although jurors who voice general

objections to capital punishment or express

conscientious or religious scruples acainsi

its infliction may not constitutionally be

excluded for cause, jurors who state they

will not vote for verdict that carries capi-

tal punishment may be so excluded.

LSA-C.Cr.P. art. 798(2).

4 Jury 108

Exclusion for cause of 14 jurors fol-

lowing determination that such jurors

could not have returned verdict of guilty

of first-degree murder knowing that such

verdict mandated death sentence or that

their fixed opinions on capital punishment

prevented impartial determination of guilt

based upon the evidence did not violate

constitutional ban on exclusion for cause

of jurors who voice general objections to

capital punishment or express conscientious

or religious scruples against its infliction.

LSA-C.Cr.P. art. 798(2); LSA-R.S. 14:30.

S. Crimiaal Law €°517.2(2)

Low intelligence alone does not vitiate

waiver of Miranda rights and confession.

6 Criminal Law C>531(!)

In determining whether confession '-

admissible, question is always whether

State has borne its burden of proving ti.

defendant was advised of his rights, that

he voluntarily elected to make statemer™.

Se ne

>

—_-

= ~- ae —

74 le.

and that his confession was otherwise free

} and voluntary.

’ 7. Criminal Law ©C=517.2(2)

Where defendant, who allegedly pos-

- sessed low intelligence, was orally advised

of Miranda rights at time of his arrest,

stated he understood such rights and was

serially questioned as to whether he under-

stood rights waived prior to transcription

of written confession the next morning,

-* and such written confession was, consider-

ing totality of circumstances, insulated

from oral confession alleged to have been

iNegally obtained on night of arrest, writ-

ten confession was admissible.

—— >

Jacques F. Bezou, New Orleans, Garon,

Brener & McNeely for defendant-appel-

lant; David E. Kendail, NAACP Legal

Defense and Educational Fund, Inc, New

York City, of counsel.

William J. Guste, Jr. Atty. Gen. Bar-

bara Rutledge, Asst. Atty. Gen., Melvin P.

Barre, Dist. Aity. Walter L. Smith, Jr.

Asst. Atty. Gen., Norman J. Pitre, Asst.

Dist. Atty., for plaintiff-appellec.

SANDERS, Chief Justice.

The Grand Jury of St. Charles Parish

indicted Johnson Washington, Jr. for the

first degree murder of James Allen Arter-

bury, a deputy sheriff of St. Charles Par-

io ish, in violation of LSA-R.S. 14:30.

Washington, represented by retained coun-

sel, was arraigned and pleaded not guilty

> and not guilty by reason of insanity. He

was granted sixty days to file preliminary

{. pleadings.

Upon a defense motion, the court ap-

' pointed a lunacy commission to examine

the defendant. After a hearing, the court

: found him competent to stand trial.

j On January 31, 1974, the jury returned a

: verdict of guilty as charged. Later, the

trial judge imposed the mandatory death

=

321 SOUTHERN REPORTER, 2d SERIES

sentence. The defendant appeals, relying

on three assignments of error.

The background facts are as follows:

Deputy James Allen Arterbury of the St.

Charles Parish Sheriff's Office answered a

disturbance call at the Nite Cap Lounge in

Killona, Louisiana about 8:30 p.m., on July

4, 1973. Because the crowd became un-

ruly, the deputy returned to his car, called

for assistance, and took his shotgun from

the trunk.

Deputy Arterbury walked toward the

crowd, kceping the muzzle of the shotgun

pointed skyward at all times. The crowd

became more belligerent and surrounded

the deputy sheriff. Someone grabbed the

deputy’s shotgun and it discharged harm-

lessly into the air. Washington then took

the revolver out of the officer's holster

and shot him in the back. The crowd scat-

tered, leaving the fallen officer mortally

wounded.

ASSIGNMENT OF ERROR NO. 1

[1] Prior to trial, defense counsel filed

a motion to quash the indictment alleging

the unconstitutionality of LRS-R.S. 14:30,

the first degree murder statute. The de-

fendant asserts that the mandatory death

penalty constitutes cruel and unusual pun-

ishment under the Eighth Amendment to

the United States Constitution and is a de-

nial of equal protection of the law in viola-

tion of the Fourteenth Amendment to the

United States Constitution.

LSA-R.S. 14:30 reads as follows:

- “First degree musger is the killing of

a human being:

. 7 . .

“(2) When the offender has a specific

intent to kill, or to inflict great bodily

harm upon, a fireman or a peace officer

who was engaged in the performance of

his iawful duties;

* 7 * + . 7.

“For the purposes of paragraph (2)

herein, the term peace officer shall be

" (2a)

= -

BEST COPY AVAILABLE =. |

-—— —- ~~~

i —_- —+ - —_. . oe

a ae ee

STATE v. WASHINGTON le. 165

Cite as, Le.. 321 Se.2d 763

* defined and include any constable, sher-

iff, deputy sheriff, local or state police-

man, game warden, federal law enforce-

ment officer, jail or prison guard, parole

officer, probation officer, judge, district

attorney, assistant district attorney or

district attorneys’ investigator.

“Whoever commits the crime of first

degree murder shall be punished by

death.”

The defendant relics upon Furman v.

Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.

Ed.2d 346 (1972). llowever, in light of

that decision, we .have heretofore upheld

the constitutionality of the capital punish-

ment provisions of the murder statute.

See State v. Hill, La. 297 So2d 660

(1974); State v. Selman, La, 300 So2d

467 (1974).

In State v. Hill, supra, where the de-

fendant had been convicted under para-

graph (4) of LSA-R.S. 14:30, we held:

“The death penalty for murder, when

the perpetrator has the intent to kill or

inflict great bodily harm on more than

one person, is neither barbarous nor dis-

proportionate to the offense. See State

v. Selman, supra; State v. Crook, 253

La. 961, 221 So.2d 473 (1969); 21 Am.

Jur2d, Criminal Law, § 613, p. 563. In

fact, the Due Process Clause of the

United States Constitution sanctions the

death penalty when it is imposed with

due process of law.

“We conclude, therefore, that capital

‘punishment per se is not constitutionally

proscribed.” .

In Hill, we also rejected defense coun-

gel’s equal protection argument, stating:

“As provided in the statute, the death

penalty is mandatory for first degree

murder. Article 817 of the Louisiana

Code of Criminal Procedure, as amended

by Act 125 of 1973, prohibits a qualifica-

tion of the guilty verdict. If the defend-

ant is found guilty as charged, the trial

[3a]

jadge must impose the death penalty.

The penalty cannot be applied in a dis-

criminatory manner. See Furman v.

Georgia, supra; Stete v. Holmes, 263

La. 685, 269 So.2d 207 (1972). It is true

that Article 814, as amended by Act 126

of 1973, lists as responsive verdicts sec-

ond degree murder, carrying a sentence

of life imprisonment, and manslaughter,

carrying a sentence of imprisonment up

to 21 years. See LSA-R.S. 14:30.1;

LSA-R.S. 14:31. The use of these less-

er verdicts, however, is contingent upon

the jury finding insufficient evidence to

convict the defendant of first degree

murder, with which he is charged. The

jury is concerned only with guilt. It has

no sentencing function. LSA-La.Const.

Art. 19, Sec. 9 (1921); LSA-C.Cr.P.

Art. 802.”

Our’ prior decisions are controlling.

This assignment of error is without merit.

‘

ASSIGNMENT OF ERROR NO. 2

During the examination of prospective

jurors, the trial court excused fourteen ju-

rors for cause. In so doing, the trial

judge relied on Paragraph (2) of Article

798 of the Louisiana Code of Criminal

Procedure, which provides that it is good

cause for challenge by the State that:

“The juror tendered in a capital case

who has conscientious scruples against

the infliction of capital punishment and

makes it unmistakably clear (a) that he

would automatically vote against the im-

.. position of capital punishment without

regard to any evidence that might be de-

veloped at the trial of the case before

him, or (b) that his attitude toward the

death penalty would prevent him from

making an impartial decision as to the

defendant's guilt; . . ..”

The defense argues, however, that the

fourteen jurors were improperly excused

in violation of Witherspoon vr. [llinois, 391

U.S. 510, 88 S.Ct. 1770, 20 L.Ed2d 776

~ = _

{

bi

766 le

a me

(1968). In that case, the United States

Supreme Court held:

“. . . [A] sentence of death cannot

be carried out if the jury that imposed

or recommended it was chosen by ex-

cluding veniremen for cause simply be-

cause they voiced gencral objections to

the death penalty or expressed conscien-

tious or religious scruples against its in-

fliction.”

At the time Witherspoon v. Illinois was

decided by the United States Supreme

Court, a Louisiana jury in a capital case

could return a verdict of “guilty without

capital punishment.” The mandatory sen-

tence for such a verdict was life imprison-

ment rather than death. LSA-C.Cr.P. Art.

817. After Furman v. Georgia was decid-

ed, our legislature restructured its capital

punishment provisions to comply with that

decision. The death sentence was autho-

rized for a restricted number of crimes,

but it was made mandatory, thus climinat-

ing the discretion formerly exercised by

the trial jury. See, e. g., LSA-R.S. 14:30;

LSA-C.Cr.P. Art. 817, as amended by Act

S02 of 1972 and Act 125 of 1973. Thus, in

Louisiana, the trial jury now has no role

in sentencing.

[2] We can reasonably conclude that

under the revised procedure, the sentence

is not “i or recommended” by the

jury. Hence, the holding in Witherspoon,

designed to avoid a “hanging jury,” would

not be strictly applicable. ,

In the present case, however, we note

that the prospective jurors were informed

during voir dire examination that the sen-

tence for first degree murder was death.

They were then questioned concerning

their attitude toward capital punishment.

In the light of the record, therefore, we

: assume That the holding of IVitherspoon v.

IUinois applies.

The Witherspoon holding is narrow.

“The Court stated:

Oe -

—— lll —

$21 SOUTHERN REPORTER, 2d SERIES

“The issue before us is a narrow one.

It does not involve the right of the pros-

ection to challenge for cause those pro-

spective jurors who state that their res-

ervations about capita! punishment would

prevent them from making an impartial

decision as to the defendant's guilt. Nor

does it involve the State's assertion of a

right to exclude from the jury in a capi-

tal case those who say that they could

never vote to impose the death penalty

or that they would refuse even to consid-

er its imposition in the case before them.

For the State of Illinois did not stop

there, but authorized the prosecution to

exclude as well ali who said that they

were opposed to capital punishment and

all who indicated that they had conscien-

tious scruples against inflicting it.”

{3] Thus, it is clear that the holding

only bans the exclusion of jurors who

voiced general objections to capital punish-

ment or expressed conscientious or reli-

gious scruples against its infliction. It

does not ban the exclusion of jurors « 0

state they will not vote for a verdict that

carries capital punishment. See Siete v.

Brown, La., 32 So.2d 290 (1974); State

v. Cripps, 259 La. 403, 250 So2d 382

(1971); State v. Pratt, 255 La. 919, 233

So.2d 883 (1970).

[4] We have examined the record in

the present case. Each of the excused ju-

rors was questioned at length by the State

and, in most instances, by the trial judge.

The prospective juror was excused for

cause only when the testimony made clear

that under no circumstances could he re-

turn a verdict of guilty of first degree

murder or that his fixed opinions prevent-

ed an impartial determination of guilt

based upon the evidence.

We conclude that this assignment of er-

ror lacks merit.

ASSIGNMENT OF ERROR NO. 3

This assignment relates to the trial

* court’s refusal to grant the defepse motion

[4a]

‘ee - ———

~ —

to suppress a confession made by the de-

fendant. The defense argues that, prior to

, making the confession, the defendant was

, not effectively apprised of his rights as

enunciated in Miranda v. Arizona, 384 U.

S. 43%, 8 S.Ct. 1602, 16 LEd2d 694

(1966), and that the confession was given

“under grave duress, coercion and fear.”

The three officers present at the arrest,

_* ' Coleman, St. Pierre, and Kimble, testified

: that, on his arrest, the defendant was oral-

ly advised of his Miranda rights (Tr. 14,

73, 99). Both the defendant and his father

indicated that they understood these rights.

Officers Loque and Coleman, who were

at the jail during much of the morning of

July 5, 1973, testified that they were able

to view the defendant in his cell frequently

and saw no evidence of intimidation or

physical abuse. Officers St. Pierre and

Kimble testified to the same effect. Offi-

cer Gary Zeringue, who photographed the

defendant at about 8:00 am, on July 5,

1973, described the defendant as looking

“normal.” Dr. Wilson Couch, who treated

the defendant on August |, 1973, saw no

signs of physical abuse.

Between 8:20 and 9:00 a.m., the defend-

> ant signed a statement acknowledging that

\ he had been advised of his Mirunda rights.

\ During that time interval, he also signed a

confession, which contains a recital that it

was given voluntarily and without any

threats or promises. 5

~ The defense contends, however, that be-

cause of defendant's low intelligence and

. imadequate education, he did not knowingly

waive his rights and had no adequate un-

derstanding of what he was signing.

{5,6] The record reflects that the de-

fendant had an cducation described by his

mother as “sixth or seventh grade.” De-

t. Carl Calvin Westover 0. United States was

consolidated for treatment with Ernesto A.

Miranda ¢. State of Arizona, Michael Vignere

° ‘ wv. State of New York, and State of California

| ~ @ Rey Alien Stewart. Westover is commonly

—_— —

rr er

ie STATE v. WASHINGTON

- Cite as, La.. 321 So.2d 763

le em

le. 767

fendant, himself, described his education as

being “to the fourth grade.” He attended

the Leesville School for the retarded for

about two years. There can be no doubt

that he was of low intelligence. Low in-

telligence alone, however, docs not vitiate

the waiver and confession. See State v.

Edwards, 257 La. 707, 243 So2d 806

(1971); State v. Chinn, 229 La. 984, 87

So.2d 315 (1955). The question must al-

ways be whether the State has borne its

burden of proving that the defendant was

advised of his rights, that he voluntarily

elected to make a statement, and that his

confession was otherwise free and volun-

tary. m

Officer St. Pierre, who witnessed the

signing of both documents, testified that he

first serially questioned the defendant as to

whether he understood the rights waived, a ~

standard method for obtaining an effective

waiver from a person of subnormal imitelli-

gence. The defendant answered each

question affirmatively and then signed the

“Voluntary Statement” form. Officer St.

Pierre testified that he then transcribed

the defendant’s confession as the defendant

related it to him.

The defendant was questioned at the

hearing on the Motion to Suppress regard-

ing his waiver and the confession. Al-

though he denied being given the Miranda

warnings, he testified in substantial accord

with his written confession. He stated:

“Then I moved to the side of the dep-

uty, pulled his gun out of the holster and

shot him one time in the right back side.”

(Tr. $2).

In contending that the waiver executed

here was ineffective, the defense also re-

lies on the Miranda principles set forth in

Westover v. United States, 384 U.S. 4%,

494, 86 S.Ct. 1602, 1638, 16 L.Ed2d 6%,

735 (1866)." Westover had been arrested

cited Miranda v. Arizona, 384 U.S. 436, 86

S.Ct. 1602, 16 L.Ed.2d G4 (1966). However,

it in separately cited here because of the par-

ticular factual circumstances of Westover's

arrest. . ‘

[Sa]

sey oe

* .

—

—

768 la

"at 9:45 p. m., not given any Miranda-type

warnings, and was interrogated throughout

the night and following morning by the lo-

cal police. He was turned over to FBI

agents at noon and confessed two and

one-half hours later. The Supreme Court

found “[no] evidence of an articulated

waiver of rights after the FBI commenced

its interrogation.” In the instant case,

however, the Miranda warnings were given

to Washington upon his arrest and prior to

his confession. The defendant waived in-

dividually each right, both orally and in

" writing.

Westover, therefore, is factually distin-

guishable.

In connection with this assignment, the

defense also argues that the defendant's

written confession was the product of an

earlier inadmissible oral confession. The

record does reveal that the defendant was

questioned during the early morning hours

of July 5, 1973. Although the record is

not altogether clear, we assume orguendo

that the defendant made an earlier inculpa-

tory statement to Deputy Coleman.

{7} The State did not introduce the

earlier statement at trial. Since Miranda

warnings were properly given upon de-

fendant’s arrest, we find no basis in the

record for holding that the earlicr state-

ment was inadmissible. Moreover, consid-

ering tlie “totality of the circumstances,”

we hold that the defendant's later confes-

sion was sufficiently insulated from the ear-

lier statement. See Clewis v. Texas, 386

U.S. 707, 87 S.Ct. 1338, 18 LEd2d 423

(1967); Darwin v. Connecticut, 391 U.S.

346, 88 S.Ct. 1488, 20 LEd.2d 630 (1968).

The record reflects that the defendant's

' confession, which was admitted in evi-

dence, was given sometime later in the

morning to Officer St. Pierre, who had not

seen the defendant since shortly after his

- . ts - - A

321 SOUTHERN REPORTER, 24 SERIES

arrest. Our earlier analysis assures us

that the Miranda warnings given in con-

junction with the taking of the written and

oral confessions were adequate to enable

the defendant to make an informed waiver.

We conclude that the confessions were not

infected by the assumed earlicr statement.

Hence, the ruling of the trial judge was

correct.

For the reasons assigned, the conviction

and sentence are affirmed.

7

DIXON and BARHAM, JJ., concur.

CALOGERO, J., concurs and assigns

reasons.

TATE, J., concurs: As to Bill No. 2, see

my concurring opinion in Stote v. Watts,

320 So2d 146 (rendered this date).

CALOGERO, Justice (concurring).

I concur in the affirmance of this de-

fendant’s conviction and sentence, but I

disagree with the majority's handling of

Assignment of Error No. 2. While the

trial court did indeed excuse fourteen ju-

rors for cause, allegedly because they indi-

cated that they could not vote for the im-

position of capital punishment despite the

evidence of guilt presented by the state,

the record reveals that defense counsel ac-

quiesced in those rulings by the trial court.

No objection, based upon cither Wither-

spoon tv. Illinois, 391 U.S. 510, 88 S.Ct.

1770, 20 L.Ed.2d 776 (1968), or upon Arti-

cle 798(2) of the Code of Criminal Proce-

dure, was made by defense counsel! at the

time the jurors were excused. According-

ly, defendant cannot avail himself of this

alleged error on appeal. Art. 841, C.Cr.P.

See State v. Watts, La., 320 So.2d 146, de-

cision rendered this date.

eee

—

Appendix B

Pp. 17-30 and pp. 42-43 of the

Petition for Writ of Certiorari

in Selman v. Louisiana, No. 74-6065

(filed February 24, 1975).

REASONS FOR GRANTING THE WRIT

i I. THE COURT SHOULD GRANT CERTIORARI TO

CONSIDER WHETHER THE IMPOSITION AND

CARRYING OUT OF THE SENTENCE OF DEATH

FOR THE CRIME OF AGGRAVATED RAPE UNDER

‘ THE LAW OF LOUISIANA VIOLATES THE

; EIGHTH OR FOURTEENTH AMENDMENT TO THE .

CONSTITUTION OF THE UNITED STATES.

_—

-

eee

On June 29, 1972, this Court held that the death penalty

could no longer be-imposed under statutory schemes which permit

its arbitrary, rare, and irregular infliction. Furman v. Georgia,

408 U.S. 238 (1972).. The Louisiana legislature subsequently

7

modified its capitél procedures by abolishing the power of

7 / Eight statutes were enacted to revise Louisiana's capital

punishment procedures after Furman: '

(1) La. Acts 1973, Act 109 (amending La. Rev. Stat. Ann.

j $14: 30 (1967)) defined the capital crime of first degree murcer.

Previously, Louisiana had not recognized degrees of murder;

|

i

|

—— —— eee

(2) La. Acts 1973, Act 110 (amending La. Rev. Stat. Ann.

§14:29 (1967)) divided “criminal homicide" into four grades:

first degree murder, second degree murder, manslaughter, negligent

_! homicide; i

|

, (3) La. Acts 1973, Act 111 (cnacting La. Rev. Stat. Ann.

. || §14:30.1 (1974)) defined a new non-capital crime of second degree

. murder; :

(4) La. Acts 1973, Act 125 (amending La. Code Crim. Proc.

| Ann. art. 817 (1967) abolished the jury's power to qualify a

capital verdict with the words “without capital punishment; "

'

|

(5) La. Acts 1973, Act 126 (amending La. Code Crim. Proc.

' Ann. art. 814 (1967)) defined the verdicts which would be “res-

' ponsive" to a capital charge, omitting the verdicts “Guilty

'‘ without capital punishment" in cases where a defendant is charged

. with first degree murder, aggravated rape, and aggravated kid-

! napping, and adding the verdict of “Guilty to second degree

murder“ in cases where a defendant is charged with first degree

i, murder, ;

fF (6) La. Acts 1973, Act 127 (amending La. Rev. Stat. Ann.

§14:31 (1967)) made a technical adjusiment in the definition of

'. manslaughter;

' al

(7) La. Acts 1973, Act 133 (amending La. Code Crim. Proc.

Ann. art. 598 (1967)) altered the article defining the effect of

» @ verdict of conviction of a lesser offense by deleting the

sentence: “When a jury returns a verdict of guilty without

capital punishment, the defendant cannot thereafter on a new trial

be sentenced to death;*

(8) La. Acts 1973, Act 134 (amending La. Code Crim. Proc. .

Ann. art. 557 (1967)) altered the article prohibiting guilty pleas

to capital offenses by deleting the sentence: “The defendant,

i . - i? -

\ [1b]

. >

‘the jury to make a recommendation of mercy when returning a ‘

capital verdict. La. Acts 1973, Act. 125 (amending La. Code

9

Crim. Proc. Ann. art. 817 (1967)). Consistently with this

7/ Cont'd.

‘with the consent of the district attorney, may plead ‘guilty

without capital punishment.*" °

‘8/ This Court and the Supreme Court of Louisiana had vacated

or reversed numerous death sentences imposed under the State's

pre-Furman procedure. See, @.¢., Sinclair v. Lovisiana, 408 U.S.

-—_—-—

939, on remand sub nom. State v. Sinclair, 263 La. 377, 268 So.2d

514 (1972); Polend v. Louisiana, 408 U.S. 936, on remand sub nom.

State v. Poland, 263 La. 269, 268 So.2d 221 (1972); Singleton v.

Louisiane, 408 U.S. 932, on remand sub nom. State v. Singleton,

263 La. 267, 269 So.2dé 220 (1972); Williams v. Louisiana, 408

U.S. 934, on remand sub nom. State v. Williams,263 La. 284, 268

So.2d 227 (1972); Square v. Louisiana, 408 U.S. 938, on remand

' sub nom. State v. Scuare, 263 La. 291, 268 So.2d 229 T1972);

Louisiona, 408 U.S. 934, on remand sub nom. State v. McAllister,

263 La. 296, 268 So.2d 231 (15972); Strong v. Louisiana, 408 U.S.

i? | Pranklin, 263 La. 344, 268 So.2d 249 (1972); State v. Hayes, 271

So.2d 525 (La. 1973); State v. McCauley, 272 So.2d 335 (La. 1973);

' 363 La. 10l2, 270 So.2d 489 (1972); State v. Refu e, 270 $0.24

842 (La. 1972); State v. Quinn, 288 So.2da 605 (La. 1974).

9/ At the time of Furman, article 817 provided:

ts "In a capital case the jury may qualify its

' verdict of guilty with the addition of the

words ‘without capital punishment’ in which

case the punishment shall be imprisonment at

hard labor for life.

In noncapital cases, any qualification of or

addition to a verdict of guilty, beyond a

specification of the offense as to which the

verdict is found, is without effect upon the

finding.”

After the 1973 amendment, article 817, La. Code Crim. Proc. Ann.

(1974 supp.) provides:

"Any qualification of or addition to a verdict

of guilty, beyond a specification of the

offense as to which the verdict is found, is

without effect upon the finding."

e 18 -

: | [2]

._-——erwwn

, !

modification, the legislature deleted the verdict “Guilty without

’ .capital punishment,” see art. 814, La. Code Crim. Proc. Ann.

(1967), as a “responsive verdict" in cases where the jury is

10/

instructed on one of Louisiana's capital crimes. La. Acts 1973,

‘Act 126 (amending art. 814). The effect of these and related

amendments is to retain the fcllowing "responsive verdicts"

upon which the juxy must be instructed, see pp. 31-41, infra:

On a first degree murder charge -- Guilty,

Guilty of second degree murder, Guilty of

i manslaughter, Kot guilty (art. 814(A) (1),

4 La. Code Crim. Proc. Ann. (1974 supp.)); |

|

it On an aggravated rape charge -- Guilty,

i! Guilty of attempted aggravated rape, Guilty

of simple rape, Not guilty (art. 814 (A) (8),

i} La. Code Crim. Proc. Ann. (1974 sypp.));

M On an aggravated kidnapping charge -- Guilty,

Guilty of simple kidnapping, Not guilty (art.

814 (A) (16), La. Code Crim.Proc. Ann. (1974

supp.)).

ee ee ee re ee eee ee ee =

.

}

| Trial procedures in capital cases were not otherwise altered.

i

|

10/ ‘In addition to the capital crimes of first degree murder

, (La. Rev. Stat. Ann. §14:30 (1974)), aggravated rape (La. Rev.

y Stat. Ann. §14:42 (1974)) and aggravated kidnapping (La. Rev.

Stat. Ann. §14:44 (1974)), Louisiana provides a death penalty

for the crime of treason:

"Treason is the levying of war against the

United States or the State of Louisiana,

ij adhering to enemies of the United States

or of the State of Louisiana, or giving

such enemies aid and comfort.

_-_————— <<

No person shall be convicted of treason

: except on the testimony of two witnesses

to the same overt act, or on his own con-

fession in open court.

‘i Whoever commits the crime of treason shall

be punished by death.”

La. Rev. Stat. Ann. §14:113 (1974). The crime of treason is not

e 309 «

° @ { 2b)

—_——— ll

OE SE SS ~—s

Since petitioner was indicted on two counts of aggravated

rape, his jury was instructed, pursuant to art. 814(A) (8), that

it could find him guilty of aggravated rape, guilty of simple

rape, guilty of attempted aggravated rape, or not guilty. He

was. found guilty of aggravated rape on both counts, and a

death sentence was imposed. On his appeal, the Louisiana Supreme

Court considered the question of “whether the said {1973] amend-

ments removed the infirmities in our law which precluded the

imposition of the death penalty for aggravated rape in Louisiana

'

since Furman v. Georgia. In other words, is the death penalty for

aggravated rape presently constitutionally permissible?" State

10/ cont'd. . i

one for which “responsive verdicts” are defined in art. 814, La.

Code Crim. Proc. Ann. (1974 supp.). Louisiana Code of Criminal

Procedure Annotated article 815 (1967) provides:

"In all cases not provided for in Article

814, the following verdicts are responsive:

_— eee ee ee

(1) Guilty;

(2) Guilty of a lesser and included grade of

the offense even though the offense charged

is a felony,and the lesser offense a mis-

demeanor; or

(3) Not Guilty.”

~——-—-— -

11/ Although the class of capitally punishable homicides

was significantly narrowed by the 1973 Louisiana capital punish- |

ment legislation through the division of “murder” into two

degrees, see note 7, supra, the definitions of aggravated rape,

simple rape, and attempt, see pp.>+4 supra, were nof altered

_in any way. '

=

[4b]

v. Selman, 300 So.2d 467, 472 (La. 1974), App. A at 6a. The

Court answered this question -- with two Justices dissenting --

by os "that the death penalty for aggravated rape is not

per se went and unusual punishment,” ibid., and that the 1973

amendments removed the constitutional infirmities specifically

condemned by Furman v. Georgia:

“[a]s we read the various concurring opinions

in... [Purman v. Georgia], wé consider the

primary objection to the death penalty was in

its administration, wherein it left to the un-

controlled discretion of judges or juries the

determination whether defendants committing

certain crimes should die or be imprisoned.

_ It was this uncontrolled discretion in the

imposition of the death penalty by the judges

or juries for a particular offense which created

a violation of the Eighth and Fourteenth Amend-

_ments to the United States Constitution.

{W]e find no substance in the argument that by

permitting a jury to render responsive verdicts,

there still remains in the jury the uncontrolled

‘@iscretion to impose the death penalty. The re-

sponsive verdicts for aggravated rape are as

follows: guilty, guilty of attempted aggravated

rape, guilty of simple rape, not guilty. The

reason for this argument lacking merit is that

the jury has no discretion in the imposition of

the death penalty for aggravated rape. If the

jury finds under the facts of the case that the

accused is guilty of aggravated rape, the death

penalty shall be imposed. On the other hand,

if the jury finds under the facts of the case

that the accused is either guilty of attempted

aggravated rape or simple rape, they will render

a verdict of guilty for that particular crime.

We must bear in mind that attempted aggravated

rape and simple rape are separate and distinct

crimes with separate penalty provisions for cach.

The fact that death is the mandatory penalty

for aggravated rape but not for the responsive

verdicts of attempted aggravated rape and simple

rape is of no moment. The sole determining factor

as to which penalty will be imposed depends upon

the particular crime for which the jury finds the

accused guilty, if any. Therefore, we conclude

eo Me

] Sb}

that there is no discretion in the

jury for the imposition of the death

penalty where the accused is found guilty

of aggravated rape. “ :

State v. Selman, sup*™21, 300 So.2d at 472-473, App. A at 6a-7a.

This decision presents issues of -sober significance

12/

not only for petitioner and the over sixteen defendants

thus far condemned under the 1973 Louisiana capital punishment

legislation, but also for the viability of the constitutional

principles applied in Furman. Certiorari is appropriate here

to consider three distinct crounds upon which petitioner urges

that his death sentence is a crvel and unusual punishment for-

bidden by the Eighth and Fourteenth Amendments.

12/ State v. Larry Calloway, Orleans Parish Dist. Ct., No.

244,393 (D) (November 14, 1974) (first degree murder); State v.

Billy Monroe, Orleans Parish Dist. Ct., Nos. 243,325 & 243,325

(November 4, 1974) (aggravated rape); State v. Harry Roberts,

Orleans Parish Dist. Ct. No. 241,775(C) (September 19, 1971)

(aggravated rape); State v. Robert Leonard, Orleans Parish Dist.

Ct. No. 74,132 (July 18, 1974) (aggravated rape); State v. Lawrence

Watts, St. Mary's Dist. Ct., No. 74,132 (July 15, 1974) (aggravated

rape); State v. Herbert Nicholson, Orleans Parish Dist.Ct., No.

238,379, (June 28, 1974) (aggravated rape); State v. Charles

Bryant, Ouachita Parish Dist. Ct., No. 36,038 (June 27, 1974)

(aggravated rape); State v. Johnson Washington, St. Charles

Parish Dist. Ct., No. 30,762 (February 7, 1974) (first degree —

murder); State v. Billy Dillard, East Carroll Parish Dist. Ct.,

No. 12,736 (February 23, 1971) (first degree murder); State v.

Sheldon Batiste & Aaron Thomas, St. Landrey Parish Dist. Ct.,

No. 26852 (October 9, 1970) (first degree mirder); State v-

Eddy Foreman, East Baton Rouge Parish Dist. Ct., No. 65,685

(October 10, 1969) (first degree murder); State v. Roy Mejia,

East Baton Rouge Parish Dist. Ct., No. 57,774 (November 2, 1967)

(first degree murder); State v. Joseph Gleason,(received at

Louisiana State Prison on October 21, 1974) (sentenced in Oricans

Parish for aggravated rape) ;State v. Parnell Smith,(received at

Louisiana State Prison on May 28, 1974) (sentenced in West

Feliciana Parish for first degree murder); State v. Gregory

England,(received at Louisiana State Prison on May 30, 1974)

(sentenced in Jefferson Parish for first degree murder).

to]

A. The Perpetuation of Arbitrary Selectivity under the

New Louisiana Capital Punishment Procedure.

The decision of the Louisiana Supreme Court warrants

review insofar as that Court held that Lovisiana's 1973

statutory modifications satisfied the minimum requirement of

Furman v. Georgia: that the penalty of death not be imposed

ke

arbitrarily. For numerous uncontrolled selective mechanisms

continue to operate before, during and after the sentencing

of defendants charged with capital crimes in Louisiana, combining

to produce a wanton and irregular infliction of the most deans:

penalty known to contemporary sonteey with “no meaning ful

basis for distinguishing the few cases in which . . . [the

death penalty] is imposed from-the many cases in which it is

not." Furman v. Georgia, supra, 408 U.S. at 313 (concurring

opinion of Mr. Justice White). coe

13/ The questions presented by sections I(B) and r(c) of this

petition, p- 44 infra, draw upon broader implications of the

Furman decision than the ininimum requirement of non-arbitrariness

stated in the text here. As section I(A) demonstrates, however,

Louisiana's present capital punishment procedure so clearly

violates that minimum requirement as to render consideration of

the broader implications of Furman unnecessary for the disposi-

tion of the case. ;

» 23 <

{7b}

1. Prosecutorial Discretion

ee ee ee ee eee ce

-Article 61 of the Louisiana Code of Criminal Procedure

Annotated (1967) provides that, subject to the limited supervi».on

of the attorney general, “the district attorney has entire charge

_ and control of every criminal prosecution instituted or pending

- @istrict attorney, to determine whom, when and how he shall

in his district, and determines whom, when, end how he shall

prosecute." The Lovisiane Supreme Court has ‘reiterated that

"{ijt is within the exclusive province of the district attorney,

who is vested with full charge and control of ores criminal

prosecution instituted or pending in any parish where he is -|

. prosecute." State v. Collins, 242 La. 704, 138 So.2d 546, 550

i.

(1962). See also State v. JourGain, 225 La. 1030, 74 So.2d 203,

204 (1954); Kemp v. Stanley, 204 La. 110, 15 So.2d 1, 20 (1943)

(on rehearing); State ex rel. Bourg v. Marrero, 132 La. 109,

61 So. 136, 143-144 (1913); Pier 1 Imports, Inc. v. Pitcher,

270 So.2d 228, 229-230 (La. App. 1972). And in recognizing the

unreviewable discretion of the district attorney to initiate

civil nuisance abatement suits, the Louisiana Court of Appeals rea-

soned from the settled criminal, jurisprudence of the State:

"{iJn a civil action such as this, a district

attorney certainly has no lesser latitude ;

of discretion to determine when he shall bring

the action to abate and to control the procecdings

than in any criminal case. We do not agree with

the contention of defendant's counsel that it

was necessary that the legislature set forth

‘any criterion or rules or standards'‘under which

the District Attorney will proceed."

Langridge v. Gassenberger, 183 So.2d 411, 413 (La. App. 1966).

The decisions whether and when it is appropriate to seek and

prosecute a capital aggravated rape indictment -~- or whether and

- 2-

[@b}

" i e es ge? @ “2

t, ” ; °

when it is appropriate to proceed upon available lesser charges

-- thus are committed to the unfettered discretion of the

Gistrict attorney.

The district attorney also has unrestricted freedom ro

terminate criminal prosecutions. Article 691, of the Louisiana

“Code of Criminal Procedure Annotated (1967) provides:

"[t)he district attorney has the power,

in his discretion, to dismiss an indictment

or a count in an indictment, and in order to

exercise that power it is not necessary

that he obtain consent of the court."

This broad power has been frequently recognized. The Louisiana

Supreme Court has held, for example, that a trial judge has no

power to require a district attorney to file a statement of

! reasons when he enters a nolle prosequi:

“ftj)here can be no doubt, of course, that the

: attorney general and the district attorneys

M of the State have absolute discretion to

nolle prosequi any criminal case .. . {S) uch

right has invariably been endorsed by the

decisions of this Court. The broad powers:

vested in the district attorneys have long

been recognized in our adjudications prior to

the inclusion of . .°. [Article 691] in our

Code of Criminal Procedure . .. .‘In all

stages of a criminal prosecution before a

jury is impanclled the prosecuting attorney

i! has an arbitrary control over his indictments,

- and may enter a nolle proseavi as to them,

y at pleasure, without the consent of the

court or of accused.'"

— ee ee

' City of Lake Charles v. Anderson, 248 La. 787, 182 So.2d 70, 71

(1966) (quoting MARR, CRIMINAL JURISPRUDENCE OF LOUISIANA 804

14/ . ss

(1906)). Sec also State v. Mingle, 242 La. 844, 139 So.2d 205,

»

14/ If a jury has been impanelled, however, a district attorney

must secure the consent of the defendant before he dismisses an

indictment. State v. Bracklin, 113 La. 879, 37 So. 863 (1905).

206 (1962) (on rehearing); State v. Broussard, 217 La. 90, 46.

So.2a 48, 50 (1950); State v. Kavanauch, 203 La. 1, 13 So.2a

366, 373 (1943).

Thus, withovt any statutory guidance or judicial control,

a district ettorney is free to elect to charge aggravated rape

or some lesser, non-capital offense on the same set of facts.

This @iscretion is absolute and will inevitably result in an

uncertain and inconsistent selection of defendants to be prose-

cuted on capital charges. As we demonstrate at pp.31-41, infra,

the legal definitions setting off tne capital crime from lesser

ones are amorphous and opaque and their application to specific

factual situations is (as the present case amply illustrates)

largely conjectural. We have no doubt that some measure of .

charging discretion must always be left in a prosecutor's hands;

but where the death penalty is a possible consequence of judg-

ments made in the exercise of that discretion, the minimal '

requirement of the Eighth Amendment as construed in — |

should surely be that the State must take all practicable steps _

to ecatrol and regulate such judgments so as to assure against

the arbitrary selection of some men to die while others in like

factual circumstances are permitted to live. In Louisiana,

there is absolutely no sogularinetion of the prosecutor's

selection among largely overlapping capital and non-capital

‘charges, and a district attorney may act “arbitrarily” in an

Eighth Amendment sense without violating any legal duty. =

oe Be

[10b]

———— —

. ——_—~<

_—-.

—- ~—eemamame «+e «+ +

i

2. Plea Bargaining

Although art. 557 of the louisiana Code of Criminal

Procedure Annotated ‘(1974 supp.) prohibits the entry of a

: 15/

guilty plea to a capital charge, article 558 (1967) provides

that:

“[t}) he defendant, with the consent of the

district attorney, may plead guilty of a

lesser offense that is included in the

offense charged in the indictment."

And article 487(B) (1974 supp.), enacted in 1970, allows a

defendant to plead guilty to an even broader range of offenscs

in exchange for the dismissal of an indictment; it provides that’

the defendant may enter “a plea of guilty to a crime nonrespon-

sive to the original indictment when such a plea is acceptable

i

to the district attorney, and in such case, the district attorney

shall not be required to file a new indictment to charge the

crime to which the plea is offered." State v. Green, 269 So.2d

460 (La. 1972), construed articles 558 and 487(B) together to

decree that a guilty plea is valid if it is voluntarily entered

to a lesser offense “of the same generic class," 269 So.2d at |

462, as that charged in the indictment, although the lesser

crime is not one that would have to be submitted as a “responsive

“—

15/ Article 557 provides: “A court shall not receive an unquali-

fied plea of guilty in a capital case. If a deferdant makes such

a plea, the court shall order a plea of not guilty entered for

him." - :

~

——_— ee ee me mee

a

a ~*

. . *

:

» ‘

. ’

.

»-

.

.

:

verdict” under article 814 at a jury trial:

“[t)he limitations on verdicts which

may be applicable to a trial are not

entirely pertinent to a guilty plea...

Generally, no limitation is imposed on the

guilty pleas which may be entered to a pending

charge, except the requirement that the plea

be to a lesser offense, and that the lesser

included offense be of the same generic class,

not requiring proof of any clement not found

in the major crime charged.”

Id. at 463.

The Louisiana Supreme Court has also approved the practice

_of plea bargaining and has recognized that a “@efendant may

validly have entered a guilty plea, guilty or not, because of

other considerations." State v. Riley, 284 So.2d 557, 558 (La.

1973). Although a district attorney must secure the agreement

16/ :

of the trial court to a sentencing bargain, he has unfettered

power to charge-bargain -- that-is, to agree to accept a guilty

plea to a lesser offense. In the case of a. defendant indicted

for aggravated rape, the prosecutor may accept a plea to simple

rape, attempted aggravated rape, or an assault charge. On the

appeal of a defendant convicted of a annwabies violation, the

Supreme Court of Louisiana ruled that the prosecutor was not

obligated to have reduced the charge or to nave offered appellant

immunity simply because codefendants had received such treatment:

“The matter of the prosecution of any criminal case is within

the entire control of the district attorney . . . and the fact

16/ "“[A)greements made solely by a prosecuting attorney granting

immunity from sentence or assurance concerning the extent ofa

sentence are unenforceable and do not bar subsequent action by the

court. Such agreements gain vitality only when the judge becomes

a party.” State v. Hingle, 242 La. 844, 139 So.2d 205, 206 (1962)

{on rehearing). ‘

———

a oe

——

°-SBSS EB’ See. 52S

— =o

=>

that not every law violator has been prosecuted is of no concern

of appellant.” State v. Jourdain, 225 La. 1030, 74 So.2d 203,

204-205 (1954).

The existence of plea bargaining is pervasive in the

criminal justice system: guilty pleas are said to account for

i7/

up to ninety per cent of all criminal convictions. Since

the harshness of a death sentence creates a relatively great

risk that a conviction will be reversed on appeal for procedural

error, capital cases are particularly likely to involve plea

bargaining:

“'fs)ince time immemorial [prosecutors] will

prefer to get a definite conviction, without

the tremendous expense that goes witha...

‘ [capital] trial, the taking cf a chance that a

jury may not convict, or that some technical

error will be made in the heat of trial which

will result in a reversal by an appellate

court.'” 18/

i

‘

'

;

.

17/ PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION

OF JUSTICE, TASK FORCE REPORT: THE COURTS 9 (1967).

18/ Bedau, Death Sentences in New Jersey 1907-1960, 19 RUTGERS

L. REV. 1, 30 (1963) (quoting opinion of Judge C. Conrad

Schneider, State v. Faison, No. 5-550-57, Bergen Cty. Ct.,

Nov. 21, 1958).

+ mee os eevee © ++:

® .

-

"A promise by the prosecutor of sentence leniency or a charge

reduction as a concession for a plea of guilty is a major

19/

characteristic of the negotiated plea process.” And an

ostensibly “mandatory” death penalty statute is particularly .

likely to produce guilty pleas to lesser included offenses,

since “[m]any prosecutors and judges . . . support the

practice as both necessary and desirable . . . to achieve

sentencing flexibility which would sometimes be prevented by

20/

mandatory sentences.” Many prosecutors

"declare without hesitation that one of

their goals in the [plea} bargaining

process is to nullify harsh, ‘unrealistic’

penalties that legislators have prescribed

for certain crimes." 21/

Prosecutorial "nullification" of this sort is manifestly invited

H

by the wide range of offenses which La. Rev. Stat. Ann. §14:42

(1974) describes as aggravated rape. See pp.31-41, infra.

It is inescapable, therefore, that in the absence of

any standards or procedures which regularize the practices of

district attorneys in accepting guilty pleas to lesser charges,

some defencants indicted for aggravated rape will escape with

sentences less harsh than death while others are eventually

consigned to dic for indistinguishable offenses upon unaccount-

able grounds.

19/ NEWMAN, CONVICTION: TIE DETERMINATION OF GUILT OR INNOCENCE

WITHOUT TRIAL 29 (1966).

20/ Id. at 102.

21/ Alschuler, The Prosecutor's Role in Plea Bargaining,

36 U.CHI. L. REV. 50, 54 (1966).

. .

‘

.

‘ S ~~

‘ , .

‘

. .

. -*

4. Executive Clemency

Article 5, section 10, of the Louisiana Constitution

provides:

“(Whe governor shall have power to grant

reprieves for all offenses against the nw

state; and may, except in cases of im-

peachment, or treason, upon the recommenéa-

tion in writing of the lieutenant governor,

attorney general, and presiding judge of the

court before which the conviction was had,

or any two of them, grant pardons, commute

sentences, and remit fines and forfeitures. ..."

The governor's discretion to spare the lives of condemned felons,

upon proper recommendation,is nearly total.

"The only limitation on the Governor's

commutation power is that he act pursuant

‘to a written recomnendation of commutation

signed by any two of the following: the

lieutenant governor, the attorney general

and the presiding judge of the court before

- which the conviction was obtained. Once this

i! recommendation is received, the Governor

has unlimited discretionary power to commute

an applicant's sentence.”

Geillard v. Cronvich, 263 La. 750, 269 So.2d 231, 232 (1972).

See also State v. Ramsey, 292 So.2d 708, 710 (La. 1974); State

v. Melerinc, 238 La. 847, 116 So.2a 689 (1959); State v. Trist,

238 La. 853, 116 So.2d 691, 697 (1950). And, of course, the

discretion of the lieutenant governor, attorney general, and/or

presiding judge to make or decline to make written recommendations

is equally unbounded. The clemency prevese is effectively immune

from judicial review. ,

'The inevitable result of this Louisiana system of coimmu-

tation is that an arbitrarily selected number of those convicted

of like crimes will be put to death. The chief executive and

{15b]

_—— re oe ee .*

. .

’

.

-

-

.

.

-

those who forward recommendations to him are bound by no criteria

for deciding which among the condemned shall live or die. Their

decisions are unexplained and inscrutable. Standards for review-

ing clemency applications may vary greatly as officeholders are

replaced -- or there may be no standards at all -- though life

and death hang in the balance.

This analysis of Louisiana's pos:-Furman capital punish-

ment procedures demonstratesthat the arbitrary selectivity con-

demned in Furman has been perpetuated notwithstanding formal

statutory amendments. Discretionary opportunities for imposition |

or avoidance of the death penalty are, in fact, as numerous

_ as unregulated as in the pre-June 29, 1972, unvtiees A sub-

stantial question of literally vital importance to petitioner is

thus presented by the Louisiane Supreme Court's affirmance of

his death sentence under the new Louisiana stattory scheme.

o 43 «

116b)

Appendix C

Selected pages of jury selection

transcript showing exclusion for

cause of fourteen veniremen at

petitioner's trial on account of

conscientious scruples against

capital punishment.

of law that I just explained to you that the fact

of an indictment is no evidence of guilt whatsocver?

Can all of you accept thet?

Mr. Hogan, you indiceted that you had some doubts about

that?

HR. HOGAN:

Yec, sir.

Q: Sir? *.

A: Yes, sir.

Q: Would you explain to us what your doubts are?

A: Well, I know that under our system of justice in Aneorica

he is innocent until proven guilty and yet some-

times it gets fixed in our mind that...

Q: Well, do you heve at this time a fixed opinion és to

the guilt of Johnson Washington, Jr., guilt or

innocence?

AL No, I suppose not.

Q: You do not?

As. I suppoze not.

Q: All right. Then I take it, Mr. Hogan, that if you were

chosen on this jury you could do as the law requires

and consider only the evidence that you hear from

that witness chair anc the lew es this court will

charge you tiie law in erriving et a verdict. Could

you do that? e

At Yes, sir. -- + - 4

MR. SMITH: [VENTREMAN MONROE DOUGLAS] }

Now, gentlemen, I have told you that this accused stands

>

153.

charged with the crime of first derree murder.

~ “Under our law that is known or commonly known ac

<— capital cese which means thet a verdict of guilty

of first @egree murcer necescarily... this court

\ 7 hes no discretion... necessorily carrics the death

penalty. Now, do any of you grutlenen have any

religious, conscientious or moral seruples segainst

the infliction of the death penalty to such 4 deeree

that you would not even consider a verdict of

guilty knowing it would carry the death penalty

regerdlicss of whet the evidence showed?

Mr. Douglas?

MR. DOUGLAS:

tes, sir.

Q: Do you heve any moral or religious scruples against the

infliction of the death penalty?

A: Well, that's kind of a hard question.

Q: It's a hard business.

A: Now, it tends into that.

Q: I'm sorry, I can't hear you very well.

A: It tends into that and what's been done about it.

Q: Well, I'm asking you, sir, if you were convinced of

the guilt of an accused beyond any retcsonable dcoudt,

any accused who was charged with a capital crine,

could you consider a verdict of guilty knowing

that it would carry the death penalty or cre your

scruples ageinst the death penalty so strong that

you wouldn't even consider thet? That's what I'm

od

154.

;

~~ *

At

MR.

COURT :

COURT:

155.

asking you.

I wouldn't want to put:a fellow to death.

Are vou telling me then, sir, that regerdless’, if you

were chosen on this jury, that regerdless of what

the cvidence from thet witness chair showed that

you would not even consider a verdict of cuilty

knowing that it would carry the death penalty?

my bible tells me,"Thou shalt not kill." I'ma.

Baptist.

cir, but I would like for you to ansrer my question

yes or no. Would you under any circumstances over

vote for the death penalty?

No, sir, I don’t think I would.

nat is, regardiess or wnat the evidaence rrom tnis

witness chair may show, you would not vote for a

verdict that would necesserily cerry the death penalty

No, sir, I’ don't think so.

SMITH:

Your honor, I'm going to tender him... if the court has

any questions... for cause.

No questions.

BEZOU:

{sic]

I tender him for cause... challenge him for cause.

Mr. Dougles, you're excused with our thanks. Thank

you, sir. Mr. Douglas, the court is going to advise

that you are not allowed to discuss whet was talked

4

ja,

—_—

about in this room until this case is over, sir.

Thank you.

MR. DOUGLAS:

Thank you, sir.

(MR. DOUGLAS LEAVES COURTNOO!)

MR. SNITH:

Mr. Hogan.

MR. HOGAN: ‘.

Yes, cir.

Q: Do you heve any such scruples or religious morals against

* that?

A: No.

Q: In other words, in a proper case you could render 6&

verdict knowing that it would carry the deatn

penalty?

A: Yes, sir.

MR. SHITH:

Mr. FPouchecux, do you have any religious seruples against

the death penalty? :

MR. PAUCHEAU:: aoe

| No, sir.

MR. SMITH:

_I take it... how about you, Mr. Madere?

MR. MADERE:

No, sir. -

MR. SuITH: (VENIREMAN HAROLD E, CROW]

Mr. Crow? ew -*:

4

156.

- Fa

®@ ait ‘ ®@

»* ~»* , . Bo ‘

’ .

Well, I think I would be real hesitant abcut it.

Q: Well, now, you really didn't answer that question. All

of us might be hesitant. If you were chosen @s5 a

juror, sir, you would take en oath to perform your

duty. I'11 phrase the question to you as I phrased

4t to Mr. Douglas. Are you telling me, sir, that

while you Kave these scruples, thet recordliess of .

what the evidence showed from the witness chair,

that you yould never under any circumstances vote

for a verdict knowing that that verdict would

necesserily carry the death penalty?

A: I don't believe I would. 7

MR. BEZOU:

Your honor, if I mey, at this point, I'm going to re-

quest that the State in questioning this witnees,

track the language of Article 798 which, in fact,

tracks the language of Footnote 21 of the Wither-

spoon case which lays the criteria for the situation

plea sks so we can get an accurate determination under the

jurisprudence.

MR. SMITH:

‘Your honor, I don't know that it's necessary that I track

any Article in ry questions as long as I get the

point across to satisfy this court as to the quali-~

fications of this juror with regard to the death

” penalty. I know of no law that says I heve to

track any statute. I have covered everything in

157. | 4

COURT :

Your

MR. BEZOU:

Your

that statute.

objection is vague, Mr. Bezou. What epecifically

do you have reference to in the statute?

honor, actually the language reads that there are

two criteria in the alternative. A says that he

would automatically vote areinst the imposition " @s

of capitel punishment without regard to any

evidence that might be developed at the trial in

MR. SMITH:

Your

BEZOU:

‘the cese before him or that his attitude toward

the death penalty would prevent him from making an

impartial decision as to the defendant's guilt.

a suggest that the language that the State is using

is different then that, is much more definite than

that and does not include the second alternative.

So that's why I ask the State to track his lenguage

according to the Statute. . That's my request, your

honor.

honor, if I may be heard. If I don’t clarify it on

the first grounds, I may go to the second grounds

and clarify it. |

#

‘ ;

-

Because the inference here is that any scruples are -

MR. SHITH:

158.

sufficient and that's not the law. -

4 .

Your honor, that's not what I asked this man. I asked

a

this man if his scruples were so strong that re-

gardicss of what the evidence shoved from that

witness chair he would refuse to vote a Verdict

that he knew would necessarily carry the death

penalty. Now if that's not word for word from that

statute and that's not what it says, then I can't

read and I know of no lew...

COURT: 's

Mr. Bezou, I'm groping but your basic argument... I

agree fully with it. I believe the State does, too.

But I don, t,see any reason why he should verbatin

follow the statute because a layman might not

understand it as easily as the language thet wr.

Smith is using now.

MR. BEZOU:

Your honor, maybe I'm getting a different impression

from what he's seying than what I interpret the

statute to read and I would want it to be as close

as possible because I know this is very important.

COURT:

All right, the State is instructed to follow the statute

as closely as possible.

MR. SMITH: |

Your honor, it's very simple. I just merely want to know

from the juror ir regardless of what the evidence

showed, would he refuse to vote for a verdict knowing

, it would carry the death penalty.

159. er . : ht 7

%

COURT:

OK. Proceed, Mr. Smith.

ad

MR. SMITH:

Would you enswer that question?

MR. CROW:

I don't think I could vote for the death penalty.

Q: Under any circumstances? Regardless of what the evicence

showed from that witness chair? is

A: No, sir.

MR. SMITH:

Your honor, I submit him if the court vents te questicn

him eny further.

COURT:

I think he's satisfied.

MR. BEZOU:

Yes, sir.

~ COURT:

Mr. Crow, you're excused with our thanks.

(MR. CROW LEAVES COURTROOM)

MR. SMITH: |

I take it that the rest of you gentlemen, by your answers,

‘4n a proper case, where you were convinced of the

guilt of the accused beyond a reasonable doubt could

render a verdict knowing it would carry the death

penalty? 3 | z

JURORS : + tae

(Indicate yes)’ | ‘athe . “.

/

> ‘ . >. ms

|

** x

i . Sar . . ®

[VENIREMAN ‘STEVE HILL]

and you were under oath when you sat in the jury

box to tell the truth. You understand that?

MR. HILL:

Yes, sir.

7 COURT:

1 It's my understanding of the conversation with you

fi immediately preceding our noon recess “hen you

in advised me in the presence of the attorneys here ~-,

that you feel at this time that you cannot sit

on this case knowing that a guilty verdict would

require the death penalty for the defendant?

MR. HILL:

I don't think I could vote to take a men's life, no,

sir. A life sentence, maybe, or something like

. | that.

| a COURT:

| And I understand it's your position now that when you

| were questioned prior to being sworn in as a juror

j <a that you did not understand the questions of

counsel and the questions of the court ccncerning

brs capital punishment?

| MR. HILL:

g Well, it was... I was under the impression that capital

punishment was life imprisonment. I didn't think...

: ; . ¥

MR. HILL: : ; . oa

| Well, I thought thet's what it meant.

COURT:

All right. Mr. Bezou, do you have any questions to ask

BEZOU:

No, sir.

COURT:

MR.

No questions?

BEZOU:

this witness... this juror?

No, sir.

COURT :

It is the ruling of this court that the situation ve

find ourselves in now is governed by Article 736,

’ thet the court may at any time before the first

witness is sworn in order a juror removed if it

“4s found even after teing sworn in that he is in-

competent to serve. Incompetence denotes not

qualified as outlined under Article 401 but rather

@ lack of ability or fitness with which to dis-

charge his duties as a juror. Therefore, I will

BEZOU:

allow the challenge by the State for cause and

excuse this juror.

To which ruling I shall respectfully reserve a bill of

= “o

exceptions making a part thereto the challenge for

cause by the State of this juror, Mr. Steve Hill,

the objection by defense to his removal, the

ruling of this court removing this juror pursuant

to Article 796 of the Code of Criminal Procedure,

the testimony adduced from Mr. Hill, the synopsis

of the testinony given to the court and the

SL LL A ly a ee

‘

oe -

-

¢- e

. ® ~*

e -

(VENIREMAN FLOYD A. WILLIAMS]

the infliction of the death penalty to such a derree

that you would not even consider a verdict of guilty

regardless of what the evidence may indicate or

show?

Mr. Williems, do you have any such religious, moral or

conscicntiovs scruples ageinst the infliction of the

death penalty?

MR. WILLIANSS:

No.

You do not?

No.

Q: You could return a verdict of gailty. knowing that thet

verdict would necessarily carry the penalty of

Geath by electrocution?

A: Well, I couldn't say beceuse I haven't heard all of

the evidence. . .

@: No, sir, I'm not speaking about this case. I'm talking

about do you have any particuler scruples or any

strong feelincs against the death penalty that

would prevent you from oven considering imposing

the death penalty in any case?

A: Yes, I have some. Say, for instance, this man he killed

one man, whet's the use in killing him, you know.

I mean, you could just, say, like lock him up, say

for a length of time. 7 : ef

Q: Does this feeling that you have about this case, and I |

assume that would apply to any case, is that right?

A: Yes. : ar ee . \".

4 ‘so 2

‘

269.

s

, ; . a . d 2 . :

e : 0 6* - . e

Q: Not only this case but any case, is that rifht?

A: Yes.

Q: This feeling that you have, Mr. Williams, is ‘it so

strong in your mind that regardless of what the

evidence from this witness chair showed, that ycu,

personally, could never vote for a verdict knowing

that such a verdict would send a man to the electric

chair? Is that correct, sir? ..

A: (Indicates yes)

Q: Is that correct?

A: Yes, sir. "

MR. BEZOU:

Your honer, if I may at this point interject, I would |

ask to clarify the issue if counsel would and I

believe that yesterday counsel was instructed to

track the language, if possible, of Article 798

and ask if the men would automatically vote against

the imposition of capital punishment without regard

to any evidence that might be developed in the

trial in the case before him. If he could phrase

it that way I- think it would solve a lot of problems.

MR. SMITH: .

Your honor, I'm just not going to let this man tell me

“how to run my case.. | !

COURT : “oe i?

I see no objection to the manner in which he is phrasing .

it now, Mr. Bezou. In fact, if either side isn't

very, very clear on this one point, the court is

4

270. ;

going to fo inte it, too, in view of the expericnce

we just had. I don't went to leave any doubt in

anyone's mind. “2

MR. SMITE:

And preperly so, your hono:.

Mc. Willians, I teke it that that is your feeling that .

you just expressed. Is that right?

MR. WILLIAMS:

Yes.

MR. SMITH:

Mr. Grice, do you have any stch seruples? >

MR. GRICE: ) FF ae :

Not against the death penalty.

MR. SHITE:

{[VENIREMAN RONALD L. BROWN]

Mr. Brown?

I don't knOW. Parag, - ; Seat

~-< - ~_e nma— -_-—— <= « -

Sir?

o

A: I couldn't honestly say. ioe

Q: Well, you will have to give an enswer one way or the

other, Mz. Brown. I take it that you have scone

scruples against the Geath penalty?

A: Yes, sir.

Q: Let me phrase it to you this way: Are thete feelings

that you have against the infliction of the death

penalty so strong...

A: I guess so.

E eeethct you would not even..- let me finish my question...

tf

that you would not even consider a verdict, ren-

dering a verdict or voting for a verdict, that

would necessarily carry that death penalty if you

knew that the verdict that you voted for would

necessarily carry the death penalty, which this

one does if he is voted guilty of first degree

murder necessarily carries the death penalty by

electrocution. Would you refuse to even consider -.

that verdict, the imposition of that verdict, or

voting for that verdict regardless of whet the

evidence from that witness chair showed?

A: No, sir. I don't think.

Q: Would you explain what you mean by that, sir. "I don't

think." You don't think what? |

A: I guess if the evidence is strong enough, you know, I

guess I would vote against hin.

Q: I can't hear you, sir. Explain it again.

A: I said if the evidence was etrong enough, I reckon I

would.

Q: You could vote guilty knowing it would carry the desth

. penalty?

A: Yes, sir.

MR. SMITH: ([VENIREMAN ROY A. MONGRUE]

Mr. Mengrue, whet is your feeling about that?

MR. MONGRUE: } . °

In good conscience, sir, I couldn't vote for somebody

‘to die. I couldn't. My conscience wouldn't let

me vote for that. . P

272. : : Progr

Q: Do you say that, Mr. Monzrue, regardless of what the

evidence shows from thet witness cheir? You just

feel that whatever it shows, you would riot vote

for it?

A: I couldn't vote for it, no.

Q: Whatever it shows, you would not vote for a verdict

_ that would necessarily carry...

A: I felt the same way 25 years ego when I was here before...

Q: And you still have those feelings?

A: Yes. :

MR. SMITH: ( VENIREMAN JAMES T. BREAUX]

kr. Breaux?

MR. BREAUX:

i nave mixea feeiings on it 2lso.

Q: Now, mixed feelings, sir, let's go into it a little

further, if we ey. Whet we've got to know, Mr.

Breaux... you see, the law sets the penalty for

first degree murcer. And the penalty set by the

law is death by electrocution. And this court, if

that verdict is returned, this court has no dis-

cretion in the matter. That's the sentence that

must be imposed if the verdict of guilty of first

degree murder is brought back. Now, knowing thet,

I ask you this question: Could you vote for such

a verdict knowing that it would necesserily carry

the death penalty? . |

A: ‘No, I could not vote that way.

Q: Do you say thet regardless of what the evidence showed,

273. ,

- . ~“--. .* -* “_-—-- ~ . -- —— ~e-+< - —- ————*~ =. . > —.

> .

_ Tse)» | ae ;

sir?

At That is correct.

Q: Buh? y

A: That is correct.

MR. SMITH:

Mr. Brown?

MR. BROW:

Can 1 change my mind? °.

Q: Yes, sir?

A: I mean I don't want to lie, I mean but I have the same

feeling. Just because I just can't make a snap

decision, I mean, I can't say, you know... |

Q: In other words, you would not vote for the death penalty

under any circumstances? |

A: That's right.

Q: Regardless of what the evidence might show?

A: Right. — | |

Q: You would just disregard that verdict because of the

fact that it carried the death penalty?

A: I can't see... ‘a. .

Q: Regardless of the evidence thet's shown from the witness

chair?

A: Right.

MR. SMITH: :

Mr. Mongrue, I believe you made yourself very clear on

that. and Mr. Breaux? |

MR. BREAUX: |

That's correct. os St 2 ee -

/ on

, . ;

274. , '

|

MPR. SMITH:

And Mr. Wiiiians?

MR. WILLIANS:

Yes,

MR. SMITH:

sir.

Your honor, at this time I would submit Pr. Williams...

MR. BEZOU:

Excuse me, Fx. Brown, Mongrue an¢ Breaux. Is that rircitt?

MR. SMITH:

Yes,

COURT:

Mr. Bezou.

MR. BEZOU:

Your honor, maybe I missed something. I certeinly heerc

275.

I'm sorry. Mr. Williaas, Mr. Brown, Mr. Mongruc

and Mr. Breaux for cause in that they have statcd

that uncer no cireunstances regerdicss of the

evidence would they even consider bringing in a

verdict of guilty knowing that that verdict would

carry the death penalty.

Mr. Breaux, Mr. Mongrue and Mr. Brown voice thet

opinion and I would agree with the State that they

should be dismissed for cause. However, maybe I

didn't hear what Mr. Williems said but I don't

recall Mr. Williams seying that he would automatically

vote against capital punishment or that under no

circumstances could he return a guilty verdict be-

cause the death penalty was going to be imposed.

——

*

7

*

COURT: .

My notes say thet Mr. Williams said that he objects to

the death penalty. Do you want to go through the

/ notes or do you want to...

MR. BEZOU:

I would like an opportunity to question him, if I may?

COURT:

OK. Concentrate on Mr. Williams. °,,

MR. BEZOU:

Mr. Williams, I'll phrase this as follows: Would you

" automatically vote against the imposition of cepital

punishment, that is, death, without recard to any

‘evidence that might be developed at the trial of

a case before you? |

MR. WILLIAMS:

Not without the evidence, no.

Q: But if, in a hypothetical situation, the State proved

@ case beyond a reasonable doubt in your mind of

first degree murder, in a case like that, could

you vote guilty knowing that a man would be sent

to death?

A: No, I couldn't.

Q: You couldn't under no circumstances?

A: No. :

MR. BEZOU: Be Re : 5

All right. —

COURT:

a

Mr. Breaux, Mr. Mongrue, Mr. Brown and Mr.- Williams, ycu

ak "

276.

-

\

are excused. Gentlemen, this court advises that

you not... just a minute... this court advises

that you not discuss anything that wes heard, over-

heard, questions asked you while you were in this

courtroom until after this case is concluded.

Thank you.

(MR. BREAUX

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